Fordham International Law Journal - Semantic Scholar · A. General Principles of Extradition The...

Fordham International Law JournalVolume 17, Issue 1 1993 Article 4

United States v. Alvarez-Machain: TheDeleterious Ramifications of Illegal

Abductions

Aimee Lee∗

∗

Copyright c©1993 by the authors. Fordham International Law Journal is produced by The Berke-ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj

United States v. Alvarez-Machain: TheDeleterious Ramifications of Illegal

Abductions

Aimee Lee

Abstract

This Comment argues that the principles set forth in Alvarez-Machain highlight the weaknessin U.S. policy regarding extraterritorial apprehensions. Part I sets forth the various methods uti-lized by nations to gain custody of an individual and how these practices have developed in theUnited States. Part II describes the factual background and the holding of the U.S. Supreme Courtin Alvarez-Machain. Part III analyzes the Supreme Court’s decision and argues that the Court’sconclusion is misguided. Part III also examines the possible effects of this decision on other na-tions that hold extradition treaties with the United States. This Comment concludes that the UnitedStates should make every effort to refrain from abductions in order to avoid consequences rangingfrom international censure to retaliatory measures. Accepting such a policy ultimately benefits theUnited States and preserves U.S. relations with other countries.

COMMENTS

UNITED STATES v ALVAREZIACHAIN: THE DELETERIOUSRAMIFICATIONS OF ILLEGAL ABDUCTIONS*

INTRODUCTION

Obtaining jurisdiction over a non-U.S. national for trial inthe United States raises a multitude of complicated issues.' His-torically, most nations, including the United States, consideredextradition as the only legitimate method of obtaining jurisdic-tion.' This belief still prevails. Extradition, however, has notprecluded the United States from employing other means tocompel personal jurisdiction over a non-U.S. citizen.I

In April 1990, the United States chose to bypass extraditionchannels and abduct Dr. Alvarez-Machain, a Mexican national,without the consent of the Mexican government.4 In response,the U.S. Court of Appeals for the Ninth Circuit, in United States v.Alvarez-Machain,5 held that the United States agents' 6 conduct

* The author would like to thank Professor Abraham Abramovsky of Fordham

University School of Law for his insight and guidance in the preparation of thisComment.

1. M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND

PRACTICE 628-29 (1987).2. Extradition, 4 Moore Dics'r § 580 at 245. The right to delivery of an individual

has been described by Moore that

[n]o State has an absolute and perfect right to demand of another the delivery of a

fugitive criminal, though it has what is called an imperfect right .... The laws ofnations embrace no provision for the surrender of persons who are fugitivesfrom the offended laws of one country to the territory of another. It is only bytreaty that such surrender can take place.

Id. (emphasis in original).3. See, e.g., United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991), rev'd,

112 S. Ct. 2188 (1992); United States v. Verdugo-Urquidez, 939 F.2d 1341 (9th Cir.

1991). The rules of international law are conventional or customary. Conventionalinternational law refers to law created or evidenced by or consolidated in an interna-

tional treaty. SHABTAi ROSENNE, PRACrICE AND METHODS OF INTERNATIONAL LAW 14

(1984). Customary international law does not depend on a treaty, and is the actual

conduct of states in their international relations. Id. at 55-56. Customary internationallaw is continually modified within the international community. Andrew M. Wolfenson,Note, The U.S. Courts And The Treatment of Suspects Abducted Abroad Under InternationalLaw, 13 Fore, HAM INT'L L.J. 705, 707-08 (1990).

4. United States v. Caro-Quintero, 745 F. Supp. 599, 603-04 (C.D. Cal. 1990). Dr.Alvarez-Machain was a named co-defendant in this case. Id. at 601.

5. 946 F.2d 1466 (9th Cir. 1991).

UNITED STATES v. ALVAREZ-MACHMN

violated the U.S.-Mexico Extradition Treaty7 and determined theremedy8 to be repatriation.9 On appeal by the U.S. government,the U.S. Supreme Court reversed the Ninth Circuit.10 The Courtreasoned that because the U.S.-Mexico Extradition Treaty" didnot specifically bar abduction, 12 the manner employed to bringthe defendant before the U.S. court did not violate the expressterms of the Treaty.'"

In condoning the U.S. action, the Court applied and up-held the Ker-Frisbie doctrine. 4 This doctrine permits a U.S.court to exercise personal jurisdiction over an individualbrought before it, regardless of the method utilized to acquirejurisdiction. 5 In Alvarez-Machain, the Supreme Court appliedthe Ker-Frisbie doctrine in its strictest sense, upholding abductionas a legitimate way of bringing a defendant before a U.S. court.'6

6. Caro-Quintero, 745 F. Supp. at 603. The agents who apprehended Dr. Alvarez-Machain were Mexican nationals and paid agents of the United States. Id.

7. See U.S.-Mexico Extradition Treaty, May 4, 1978, 31 U.S.T. 5059, T.I.A.S. No.9656 (replacing earlier extradition treaties of 1899, 1902, 1925 and 1939) [hereinafterTreaty].

8. Alvarez-Machain, 946 F.2d at 1466-67.9. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES

§ 432 (1987). "[T]he state from which the person was abducted may demand return ofthe person and international law requires that he be returned." Id.

10. United States v. Alvarez-Machain, 112 S. Ct. 2188, 2193 (1992).11. See Treaty, supra note 7, 31 U.S.T. 5059, T.I.A.S. No. 9656.12. Abraham Abramovsky, Extrateritorial Abductions: America's "Catch and Snatch"

Policy Run Amok, 31 VA.J. INT'L L. 151, 156 (1991) [hereinafter Abramovsky, Catch andSnatch Policy]. "'[Aibduction,' is characterized by an absence of consultation with anyresponsible representatives of the asylum country's government." Id. Abductions areperformed unilaterally, without the aid or knowledge of the asylum state. AbrahamAbramovsky & Steven Eagle, U.S. Poliy in Apprehending Alleged Offenders Abroad: Extradi-tion, Abduction, or Irregular Rendition?, 57 OR. L. REv. 51, 71 (1977) [hereinafterAbramovsky & Eagle].

13. Alvarez-Machain, 112 S. Ct. at 2193-94.14. Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952). The

Ker-Frisbie doctrine evolved from the holdings of both cases. Ker v. Illinois, 119 U.S. 436(1886); Frisbie v. Collins, 342 U.S. 519 (1952). The Court in Alvarez-Machain appliedthe Ker-Frisbie doctrine and stated that:

we conclude, however, that respondent's abduction was not in violation of theExtradition Treaty between the United States and Mexico, and therefore therule of Ker v. Illinois is fully applicable to this case. The fact of respondent'sforcible abduction does not therefore prohibit his trial in a court in theUnited States for violations of the criminal laws of the United States.

Alvarez-Machain, 112 S. Ct. at 2196.15. BASSIOUNI, supra note 1, at 201.16. Alvarez-Machain, 112 S. Ct. at 2196 (quoting Supreme Court's decision justify-

ing custody of Dr. Alvarez-Machain).

128 FORDHAMINTERNATIONAL LAWJOURNAL

This Comment argues that the principles set forth in Alva-rez-Machain highlight the weakness in U.S. policy regarding ex-traterritorial apprehensions. Part I sets forth the various meth-ods utilized by nations to gain custody of an individual and howthese practices have developed in the United States. Part II de-scribes the factual background and the holding of the U.S.Supreme Court in Alvarez-Machain. Part III analyzes theSupreme Court's decision and argues that the Court's conclu-sion is misguided. Part III also examines the possible effects ofthis decision on other nations that hold extradition treaties withthe United States. This Comment concludes that the UnitedStates should make every effort to refrain from abductions inorder to avoid consequences ranging from international censureto retaliatory measures. Accepting such a policy ultimately ben-efits the United States and preserves U.S. relations with othercountries.

I. METHODS OF GAINING CUSTODY OF NON-NATIONALS

Obtaining custody of a non-national defendant in a crimi-nal proceeding is a common issue in international criminallaw.' 7 Traditionally, an extradition treaty provided the primarymethod to gain jurisdiction over an individual." An extraditiontreaty is a bilateral19 or multilateral 20 agreement that functionsto foster cooperation and preserve the sovereignty of the signato-

21ries.

17. BARBARA YARNOLD, INTERNATIONAL FUGrrvES 1 (1991).18. See Extradition, 6 Whiteman DIGEST § 1, at 727. Extradition is the customary

method for a state to obtain jurisdiction over a fugitive abroad. Id.19. Extradition, 4 Hackworth DIGEST § 312, at 33. "Treaties of extradition are usu-

ally bilateral in form and reciprocal in their undertakings." Id. Bilateral treaties recog-nize a nation's sovereignty, however the practice of bilateral treaties is a cumbersomeprocess of entering into a separate and distinct agreement with each nation to preservesovereignty. BASSIOUNI, supra note 1, at 31. The United States, England and most com-mon law countries utilize extradition by signing a bilateral treaty. Id. at 31.

20. BASSIOUNI, supra note 1, at 25. The United States, however, can and does re-quest extradition from a state with which the United States has no treaty or relies on amultilateral treaty. Id. at 40. Multilateral treaties are entered into by nations in a partic-ular geographic region. Id. at 25. The treaty serves to harmonize the different nationalsystems so as to maintain one unifying standard of practice regarding extradition. Id.Frequently the states involved are bound by political or economic ties. Whiteman,supra note 18, § 10, at 753. Multilateral extradition agreements are similar to bilateralagreements in form and content. Id.

21. BASSIOUNI, supra note 1, at 32. Sovereignty and territoriality are paramountconsiderations under international law. Abramovsky & Eagle, supra note 12, at 63.

[Vol. 17:126

UNITED STATES v. AL VAREZ-MACHAIN

Although extradition provides a formal mechanism, nationsoften employ other means to acquire custody of an individual. 2

As alternatives to extradition, states have utilized abduction andother quasi-legal methods to gain jurisdiction over an individ-ual.2 3 Nations resort to these alternate methods in order to sub-vert the operation of an extradition treaty, but still achieve thesame result.24 Generally, personal jurisdiction over an individualmay be obtained by one of the following three manners: legallythrough either an extradition treaty or a civil law system;25 quasi-legally through irregular renditions;26 or illegally via an abduc-tion.27

A. General Principles of Extradition

The history of extradition reflects the development of polit-ical relations between states. 28 Before extradition treaties be-came prevalent, countries exchanged individuals through cour-tesy and friendly cooperation, commonly referred to in interna-tional law as comity.29 Extradition ultimately emerged to

22. See BAssIOUNI, supra note 1, at 189 (discussing alternative methods of rendi-tion). Other methods include irregular rendition and abduction. Id.; Abramovsky &Eagle, supra note 12, at 52. Irregular renditions "may be defined as ad hoc agreementsordinarily entered into between law enforcement agents of the apprehending and asy-lum states whereby either through active cooperation or acquiescence by officials of theasylum state an individual is removed forcibly to the state of apprehension." Abramov-sky & Eagle, supra note 12, at 52; see supra note 12 (defining abduction); see also GEOFF

GILBERT, ASPECTS OF ExmADrrION LAw 1 (1991) (discussing extradition generally).23. BAssiOUNI, supra note 1, at 189. Abduction and irregular rendition are the

most common alternatives to extradition, however, "[h]ybrid renditions are possible."Abramovsky, Catch and Snatch Policy, supra note 12, at 156.

24. See supra note 22 (stating alternate methods to include abduction and illegalrendition).

25. Abramovsky, Catch and Snatch Policy, supra note 12, at 51-52; see supra notes 19-20 and accompanying text (discussing bilateral and multilateral extradition treaties).

26. Abramovsky, Catch and Snatch Policy, supra note 12, at 51-52.27. Id. "Abduction is clearly an illegal act by the municipal law of the place where

it occurs and by international law." I.A. SHEARER, ExTRADION IN INTERNATIONAL LAW72 (1971).

28. BAssIOUNI, iupra note 1, at 6.-29. Id. at 5. "States observe not only legally binding rules and such rules as have

the character of usages, but also rules of politeness, convenience, and goodwill. Suchrules of international conduct are not rules of law, but of Comity." I LAsSA OPPENHEIM,INTERNATIONAL LAw 33-34 (1955). The U.S. position as to extradition through an act ofcomity is that

[g] enerally, this government does not request surrender as an act of comity,since in the few cases where it has done so, it has been necessary to point outto the government of the asylum country that this government would be un-

1993]

130 FORDHAMINTERNATIONAL LAWJOURNAL [Vol. 17:126

preserve internal order and to facilitate international coopera-tion in the suppression of criminality.30 In present practice,most states enter bilateral or multilateral treaties that provide forthe extradition of individuals from one state to another.3 Otherstates, however, continue to render individuals through comity.3 2

Extradition preserves the principle of territoriality by providing alegal channel for two nation-states to confer with one another inorder to properly exercise jurisdiction over an individualcharged with a crime. 3 By enabling countries to work effectivelywith one another, extradition treaties preserve the sovereignty 4

of the countries involved.35

Nations utilize extradition treaties when a country seekingan individual, referred to as the "requesting country," requeststhe delivery of that individual from another country, called the"asylum" or "requested country."36 The requested or asylumcountry, pursuant to the terms of the extradition treaty, must

able to comply with such a request if it should receive one. Such a statementusually has the effect of causing the requested government to decline surren-der.

Whiteman, supra note 18, § 4, at 736-37; see, e.g. Hilton v. Guyot, 159 U.S. 113 (1895)(defining general principles of comity).

30. BAsslouNi, supra note 1, at 7. Hugo Grotius in 1625 articulated this sentiment.Id. This idea grew between the 16th and 18th centuries at the time when piracy esca-lated. Id.

31. See supra notes 19-20 and accompanying text (discussing bilateral and multilat-eral extradition treaties).

32. See supra note 29 (discussing principles of comity).33. BAssIOUNI, supra note 1, at 8. It should be noted that seldom was the requested

individual a subject of the asylum country. Id.34. Gary W. Schons, Comment, United States v. Toscanino: An Assault on the Ker Fris-

bie Rule, 12 SAN DIEGo L. REv. 865, 873 (1975). "A fundamental principle of interna-tional law is that the sovereignty of every nation is limited by its own territorial bounda-ries, and any nation is therefore incompetent to act within the territorial boundaries ofanother sovereign without its consent." Id.

35. Id.36. Wade A. Buser, Comment, The Jaffe Case and the Use of International Kidnapping

As An Alternative, 14 GA. J. Irr'L & COMP. L. 357, 362-63 (1984). Requesting statesmeans the state which seeks extradition while asylum state means the state from whichextradition is sought. Id. Asylum and territorial supremacy are closely related. As Op-penheim expressed

[t]he fact that every State exercises territorial supremacy over all persons on itsterritory, whether they are subjects or aliens, excludes the exercise of thepower of foreign States over its nationals in the territory of another State.[The foreign State is] provisionally at least, an asylum for every individual who,being prosecuted at home, crosses its frontier.

OPPENHEIM, supra note 29, at 676-77.

1993] UNITED STATES v AL VAREZ-MACHAIN

deliver the individual to the requesting country or prosecutethat individual under its own laws.57 This principle is commonlyreferred to in international law as aut dedere aut judicare.3a

In order to invoke an extradition treaty, certain criteriamust be met. Double criminality must exist; the act of the indi-vidual must be a crime in the requesting country as well as in therequested country.39 The crime must also be an extraditable of-fense listed in the treaty.40 In the absence of such a provision,the asylum country determines whether the offense falls withinthe scope of the treaty and whether the offense satisfies thedouble criminality requirement.4' If no treaty is in effect be-tween the two nations, the crime must be mutually recognized asan offense that would warrant reciprocal rendition.42 Some

37. BAssioUN1, supra note 1, at 10. (citing Hugo Grotius, Dejure Belli ac Pacis, Book2, Ch. XXI, §§ 3,4 (1624)). Hugo Grotius expressed preservation of sovereignty in theidea that a state had control over its own citizen, or civitas maximas, which was encom-passed in his espousal of the maxim aut dedere autjudicare, the principle that the asylumstate was obligated to either return the accused or punish the accused under its ownlaws. Id.

38. Id. Aut dedere autjudicare has widespread application and use in interstate, in-ternal and transnational cases. Id. There is a contrasting view supported by Puffendorf,that the duty to extradite is an imperfect obligation which requires an explicit agree-ment. Id. Contemporary practice views extradition under a treaty as an imperfect rightwith regard to common criminality, but as an obligation with regard to internationalcriminality. Id.

39. See Whiteman, supra note 18, § 13, at 773. This is a common requirement forextradition, and this requirement exists even when the request is made apart from atreaty or when there is a list of extraditable offenses. Id. Bassiouni gives three interpre-tations of double criminality: (1) acts which are chargeable in both states as offensesregardless of prosecutability; (2) acts which are chargeable and prosecutable in bothstates; and (3) acts which are chargeable, prosecutable and could result in a convictionin both states. BAssIouNI, supra note 1, at 326. The majority of states adopt the firstinterpretation defining double criminality. Id. In the United States, "it suffices if theact charged is criminal by the law of the demanding country and by the laws of theparticular State of the United States in which the person charged is found." Moore,supra note 2, § 589, at 268 (citing Wright v. Henkel, 190 U.S. 40 (1903)); see also Vil-lareal v. Hammond, 74 F.2d 503, 505 (5th Cir. 1934) (stating that extradition requiresoffense denounced as crime by law of asylum state).

40. Hackworth supra note 19, § 304, at 2. "A state usually will decline to extraditepursuant to the provisions of a treaty containing a list of extraditable offenses unless theoffense charged is enumerated in the list." Id The U.S. views extraditable offenses asthose specified in a particular treaty. See Whiteman, supra note 18, § 13, at 772. All thebilateral treaties to which the United States is a party contain a list of extraditable of-fenses. Id.

41. BAssIoUNi, supra note 1, at 329. "[Tlhe two requirements of extraditable of-fense and double criminality ... are satisfied by a single test, i.e., the conduct is crimi-nal in the jurisprudence of both states even though not defined identically." Id.

42. BAssiouNi, supra note 1, at 328.

132 FORDHAMJNTERNATIONAL LAWJOURNAL [Vol. 17:126

international crimes, regardless of what the extradition treatyprovides, are governed by international conventions andmandate that the asylum country either extradite or prosecutethe individual.43

1. Extradition Treaties in the United States

Extradition treaties are a fairly modern concept in theUnited States.44 Prior to 1794, the United States declined toenter into extradition agreements. 45 This reluctance developedout of a distrust of monarchical regimes46 and a concern thatextradition would deter immigrants in need of asylum.47

In 1794, the United States entered into its first extraditiontreaty, the Treaty of Amity, Commerce and Navigation, also re-ferred to as the Jay Treaty, with Great Britain.48 The terms of theJay Treaty were narrow, establishing murder and forgery as theonly two extraditable offenses, 49 which reflected the cautious at-titude of the United States.5" National outcry evidenced the U.S.

43. Id. at 13. Those crimes which require extradition or prosecution are set bymultilateral conventions on international criminal law. Id.

44. See Santo F. Russo, Comment, In re Extradition of Khaled Mohammed ElJassem:The Demise of the Political Offense Provision in U.S.-Italian Relations, 16 FORDHAM

INT'L L.J. 1253, 1261 (1993). "Extradition represents one of the oldest instruments ofcooperation between states in criminal matters." Id. Extradition existed as far back as1280 B.C. with the first extradition treaty entered into by Ramses II, Pharaoh of Egypt,and the Hittite King Hattusili III. SHEARER, supra note 27, at 5.

45. See Abramovsky, Catch and Snatch Policy, 'supra note 12, at 154.46. Id. at 154. The United States was first settled by people who sought to escape a

monarchical form of government. Id.47. Id. at 154.48. Treaty of Amity, Commerce and Navigation (Jay Treaty), Nov. 19, 1794, 8 Stat.

116, T.S. No. 105 [hereinafterJay Treaty].49. See Jay Treaty, supra note 48, art. 27, 8 Stat. at 129 T.S. No. 105. Article 27

provides:It is further agreed that His Majesty and the United States on mutual requisi-tion, by them respectively, or by their respective Ministers or officers author-ized to make the same, will deliver up tojustice all persons who, being chargedwith murder or forgery, committed within the jurisdiction of either, shall seekan asylum within any of the countries of the other, provided that this shall onlybe done on such evidence of criminality as, according to the laws of the placewhere the fugitive or person so charged shall be found, would justify his appre-hension and commitment for trial, if the offence had there been committed.The expense of such apprehension and delivery shall be borne and defrayedby those who make the requisition and receive the fugitive.

Id. The Jay Treaty only incidentally provided for extradition. SHEARER, supra note 27,at 6. "Such provisions were just a gesture of friendship'and cooperation." Id.

50. Abramovsky, Catch and Snatch Policy, supra note 12, at 154.

19931 UNITED STATES v. AL VAREZ-MA CHAIN 133

public's opposition to extradition when Britain first invoked theJay Treaty seeking custody of a U.S. citizen.51

Despite its initial reluctance to enter into extradition trea-ties, the United States began to recognize the necessity and prac-ticality of extradition treaties in the mid-1800s.52 First, concernfor the administration ofjustice encouraged the United States toform extradition agreements with other nations.53 Second, theneed to combat transnational crime developed. 4 Finally, astransportation improved, it became imperative for nations toseek the return of individuals who fled the country in order toevade prosecution.55 These factors prompted the United Statesto enter into extradition treaties with a number of countries.56

Extradition in the United States is governed primarilythrough bilateral treaties." The United States forms a separatetreaty with each country with which it desires to have an extradi-tion agreement. 8 Through the use of bilateral treaties, theUnited States is now a party to over one hundred extraditiontreaties." These treaties are amended or replaced periodi-cally.'

51. Honorable John Marshall, Address Before the House of Representatives, Onthe Resolutions of the Honorable Edward Livingston (1820), in 18 U.S. 201 (1820).

52. Abramovsky, Catch and Snatch Policy, supra note 12, at 154.53. Hackworth, supra note 19, § 304 at 2.54. Abramovsky, Catch and Snatch Policy,, supra note 12, at 154. "A growing aware-

ness of the need to combat transnational crime contributed to a more receptive attitudetoward international agreements." Id.

55. OPPENHEIM, supra note 29, at 696-97. Fugitives were regularly surrendered byneighboring states to each other. Id. In the 19th century, as railways and transatlanticsteamship transit developed immensely and criminals were able to flee to distant coun-tries, States found that it was in their common interest to surrender criminals to eachother. Id.; SHEARER, supra note 27, at 11.

56. BASSIOUNI, supra note 1, at 41. "Today, the United States is a party to no lessthan 104 extradition treaties as well as several other multilateral arrangements gov-erning extradition for specific offenses." Abramovsky, Catch and Snatch Policy, supranote 12, at 154; see also ExTRADMON LAws & TREATI~s (I. Kavass & A. Sprndzs eds. 1979)(Supp. Apr. 1993) (documenting 104 treaties into which the United States has enteredincluding those with Albania, Belize, Germany, Israel, Japan, Singapore).

57. See supra notes 19-20 (discussing bilateral and multilateral treaties).58. BAsslouNI, supra note 1, at 41.59. See supra note 56 (referring to over 100 extradition treaties United States has

entered into).60. BAsslouNI, supra note 1, at 41. Diplomacy between states plays an important

part in treaty practice, because a change in foreign policy by one of the parties to theextradition treaty may affect treaty arrangements. Id. In addition, state succession, theeffects of war, and the severance of diplomatic relations may require alteration of theexisting treaty. Id. at 57.

134 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 17:126

The executive, judicial and legislative branches of the U.S.government play a role in U.S. extradition law and practice.6' Inthe United States, the executive branch forms the extraditiontreaty subject to the advice and consent of the Senate.62 Thejudiciary has the limited role of enforcing and interpreting thetreaty." The United States requires the judiciary to considercertain factors and principles in interpreting an extraditiontreaty, such as the negotiating history, the intent of the parties,and the conduct of the parties under the treaty.64. The judiciaryalso applies customary international law05 and federal legislationin the interpretation of treaties.66 The judiciary considers thesefactors in ascertaining the plain meaning of the language andliberally construes the treaty to encompass all of the factors in-

61. BASSIOUNI, supra note 1, at 39. Power in the U.S. government is divided intothree branches: the President holds executive power; the Congress holds all legislativepower; and the Supreme Court has the judicial power. RICHARD M. Pious, AMERICANPOLrrICs AND GOVERNMENT, 49-50 (1986). Article 1, section 8 paragraph 18, of theUnited States Constitution granted the Congress the power to "make all laws whichshall be Necessary and Proper for carrying into Execution the powers [enumerated inarticle 1, section 8], and all other powers vested by this Constitution in the Governmentof the United States, or in any Department or Officer thereof." U.S. CONST. art. 1, § 8.Presidential power includes nominating important civil and military officials, seeingthat the laws are faithfully executed by government officials, reporting and recom-mending measures to the Congress, acting as commander-in-chief of the armed forcesand pardoning offenses against the Constitution. Pious, supra at 46; U.S. CONST. art. 2,§§ 2-3. The Judiciary possesses the power to "declare state laws or actions null and voidon the grounds that they violated the national Constitution. They could also issue de-crees and judgments directly affecting citizens, declaring that their action violated na-tional laws, treaties, or the Constitution." Pious, supra at 46; see also U.S. CONST. art. 3(setting forth power of judiciary).

62. U.S. CoNsT. art 2, § 2; see, e.g. BAssioUNI, supra note 1, at 39; Pious, supra note61, at 39. Article 2, section 2 provides, in part, that the President "shall have Power, byand with the Advice and Consent of the Senate, to make Treaties, provided two thirdsof the Senators present concur...." U.S. CONST. art 2, § 2. "Thus only one legislativechamber approves treaties, but with a two-thirds majority [of the Senate]. Time, usageand necessity have demonstrated that the main role in foreign relations is played by thePresident." Luzius WILDHABER, TREATY-MAKING POWER AND CoNSTITUTION 60 (1971)(emphasis in original).

63. BAssIOUNI, supra note 1, at 39 (explaining that judiciary cannot enjoin, pro-hibit or mandate executive negotiation or agreement of treaty, nor enjoin, or mandateexecutive's exercise of discretion to request relator's extradition or to refuse to grantextradition although terms of applicable treaty have been satisfied).

64. Id. at 77-80.65. BAssiOUNI, supra note 1, at 77-79; see supra note 3 (explaining customary inter-

national law). The United States does not, however, apply customary international lawto extradition outside of interpretation of treaties. See ROSENNE, supra note 3, at 56.

66. BAssiOUNI, supra note 1, at 77-79.

1993] UNITED STATES v. ALVARE-MACHAIN 135

volved.67

2. The U.S.-Mexico Extradition Treaty

The U.S.-Mexico Extradition Treaty represents one of themany extradition treaties entered into by the United States.'The Treaty explicitly enumerates thirty-one extraditable offensespunishable by the federal laws of both countries.6 9 Therefore, if

67. Id. at 77-79; Hackworth supra note 19, § 313 at 39 (citing Valentine v. UnitedStates ex rel. Neidecker, 299 U.S. 5, 10 (1936)).

68. See Treaty, supra note 7, 31 U.S.T. 5059, T.I.A.S. No. 9656. The current en-forceable U.S.-Mexico Extradition Treaty was signed in Mexico City on May 4, 1978,and became effective onJanuary 25, 1980. Id.; see supra note 56 and accompanying text(setting forth examples of over one-hundred bilateral extradition treaties U.S. has en-tered into).

69. See Treaty, supra note 7, art. 2(3) & app., 31 U.S.T. at 5062, 5076-78, T.I.A.S.No. 9656 at 4, 18-20. The Appendix specifically sets forth these offenses:

1. Murder or manslaughter; abortion.2. Malicious wounding or injury.3. Abandonment of miniors or other dependents when there is danger of

injury or death.4. Kidnapping; child stealing; abduction; false imprisonment.5. Rape; statutory rape; indecent assault; corruption of minors, including un-

lawful sexual acts with or upon children under the age of consent.6. Procuration; promoting or facilitating prostitution.7. Robbery; burglary; larceny.8. Fraud.9. Embezzlement.

10. An offense against the laws relating to counterfeiting and forgery.11. Extortion.12. Receiving or transporting any money, valuable securities, or other prop-

erty knowing the same to have been unlawfully obtained.13. Arson; malicious injury to property.14. Offenses against the laws relating to the traffic in, possession, production,

manufacture, importation or exportation of dangerous drugs and chemi-cals, including narcotic drugs, cannabis, psychotropic drugs, opium, co-caine, or their derivatives.

15. Offenses against the laws relating to the control of poisonous chemicals orsubstances injurious to health.

16. Piracy.17. Offenses against the safety of means of transportation including any act

that would endanger a person in a means of transportation.18. An offense relating to unlawful seizure or exercise of control of trains,

aircraft, vessels, or other means of transportation.19. Offenses against the laws relating to prohibited weapons, and the control

of firearms, ammunition, explosives, incendiary devices or nuclear materi-als.

20. An offense against the laws relating to international trade and transfers offunds or valuable metals.

21. An offense against the laws relating to the importation, exportation, or

136 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 17:126

a citizen of either party to the Treaty commits one of the of-fenses listed, that individual may be extradited. °

Under Article 9 of the Treaty, however, neither party is re-quired to extradite its own nationals.71 In addition, the execu-

international transit of goods, articles, or merchandise, including histori-cal or archeological items.

22. Violations of the customs laws.23. Offenses against the laws relating to the control of companies, banking

institutions, or other corporations.24. Offenses against the laws relating to the sale of securities, including stocks,

bonds and instruments of credit.25. Offenses against the laws relating to bankruptcy or rehabilitation of a cor-

poration.26. Offenses against the laws relating to prohibition of monopoly or unfair

transactions.27. Offenses against the laws relating to protection of industrial property or

copyright.28. Offenses against the laws relating to abuse of official authority.29. Bribery, including soliciting, offering and accepting bribes.30. Perjury; false statements to any governmental authority. Subornation of

perjury or false statements.31. Offenses against the laws relating to obstruction ofjustice, including har-

boring criminals and suppressing evidence.Id., 31 U.S.T. at 5076-78, T.I.A.S. No. 9656 at 18-20.

70. See Treaty, supra note 7, art. 2(3) & app., 31 U.S.T. at 5062, 5076-78, T.I.A.S.No. 9656 at 4, 18-20 (setting forth parameters of extraditable offenses); see supra notes39-43 and accompanying text (discussing double criminality and listed offenses).

71. See Treaty, supra note 7, art. 9, 31 U.S.T. at 5065, T.I.A.S. No. 9656 at 7 (settingforth option of denying extradition of state's own nationals and alternatively submittingcase to state's own authorities). Article 9, paragraph 1 provides:

1. Neither Contracting Party shall be bound to deliver up its own nationals,but the executive authority of the requested Party shall, if not prevented by thelaws of that Party, have the power to deliver them up if, in its discretion, it bedeemed proper to do so.

Id. Most extradition treaties do not impose an obligation to surrender citizens of theasylum state. See Hackworth supra note 19, § 317, at 55 (noting states are not requiredto deliver its nationals). "Under the laws of many countries and under many extradi-tion treaties, the extradition of nationals of the requested State is prohibited or is no-nobligatory." Whiteman, supra note 18, § 18, at 865. "[G]enerally speaking, the policyof the United States is to surrender citizens." See Hackworth, supra note 19, at 55. TheMexican Law of International Extradition Chapter I, article 14, provides that no Mexi-can national may be extradited to a foreign country except in exceptional cases in thediscretion of the Executive. Ley de Extradicion Internacinal, Capitulo I, Articulo 14, inDiario Oficial (Dec. 29, 1975) ("Ningfin mexicano podrAi ser entregado a un Estadoextranjero sino en casos excepcionales a juicio del Ejecutivo.") The government ofMexico had not extradited a single Mexican national under the terms of the U.S.-Mex-ico Extradition Treaty at the time the Supreme Court was considering this case. Brieffor the United States on writ of certiorari to the U.S. Court of Appeals for the NinthCircuit at 21 n.17, United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991) (No.91-712), rev'd, 112 S. Ct. 2188 (1992) [hereinafter Government's Brief].

1993] UNIT STATES v. AL VAREZ-MA CHAIN

tive authority of the requested party may exercise discretionwhether to extradite the individual. This discretion may bepremised on whether extradition is proper pursuant to a na-tion's domestic laws.7" Conversely, the Treaty provides that if ex-tradition is not granted, the requested party will submit the caseto its own authorities for domestic prosecution, provided thatthe requesting party has jurisdiction over the offense.74

In the past, the United States and Mexico have exercisedthe option provided by Article 9 in contrasting ways."' Mexicohas rarely extradited any of its citizens to the United States.76 Incases when Mexico has refused to surrender an individual, Mexi-can authorities have, at times, prosecuted the individuals them-selves.77 This practice of domestic prosecution by the requestedstate can often be unsatisfactory to the requesting state.78 In

72. See Treaty, supra note 7, art. 9, 31 U.S.T. at 5065, T.I.A.S. No. 9656 at 7. Thesecond paragraph of Article 9 provides:

2. If extradition is not granted pursuant to paragraph 1 of this Article, therequested Party shall submit the case to its competent authorities for the pur-pose of prosecution, provided that Party has jurisdiction over the offense.

Id.73. See Treaty, supra note 7, art. 9(1), 31 U.S.T. at 5065i T.I.A.S. No. 9656 at 7

(setting forth policy of extradition of nationals).74. See Treaty, supra note 7, art. 9(2), 31 U.S.T. at 5065, T.I.A.S. No. 9656 at 7

(setting forth alternative to extradition is submission of case to requested state's ownauthorities); supra notes 37-38 (explaining general principle of aut dedere autjudicare).

75. See supra note 71 (explaining that United States generally renders its citizenswhile Mexico does not).

76. See supra note 71 (setting forth Mexico's law prohibiting extradition of Mexi-can nationals except in extreme cases). On grounds of nationality, Mexico denied ex-tradition requests by the United States in 1943 of Francis Xavier Fernandez, who wascharged with larceny, and in 1961 of Alejandro Ramirez Hinojosa, charged with viola-tions of narcotics laws. See Whiteman, supra note 18, § 18, at 866-69.

77. See, e.g., Michael Isikoff, Arrest of Mexican Doctor Strains DEA 's Reputation, WAsH.PosT, May 2, 1990, at Al. Mexico has prosecuted Rafael Caro-Quintero and MiguelAngel Felix Gallaredo. Id. Domestic prosecution is not uncommon and "[g]enerallyspeaking, those countries which refuse to surrender their nationals have the power...to prosecute them for offenses committed abroad. Accordingly, treaties and laws whichexempt nationals from extradition frequently require that they be tried by the countryof which they are a national for the offense involved." Whiteman, supra note 18, § 18,at 876-77.

78. Heath v. Alabama, 474 U.S. 82, 93 (1985). "A State's interest in vindicating itssovereign authority through enforcement of its laws by definition can never be satisfiedby another state's enforcement of its own laws." Id. at 93 (emphasis in original).Abramovsky, Catch and Snatch Policy, supra note 12, at 207. "[T]he United States hasoften been disappointed by both the law of persecution of the relator and the slownessof the Mexican legal process." Id. "U.S. officials are exasperated at Mexican ineffi-ciency and corruption." Juan M. Vasquez, US. Bitterness Lingers in Drug Agent's Killing,


fact, the United States has been disappointed with Mexico's legalresponse. 79 In contrast, the United States generally has deliv-ered its citizens to Mexico. ° In addition, recent allegations ofcorruption in Mexico's legal system have only exacerbated U.S.dissatisfaction with Mexican prosecution.81

B. Irregular Renditions as a Method of Apprehension

Alternative quasi-legal means to extradition have existed aslong as the practice of extradition itself.8 2 Quasi-legal methodsderive from the principle mala captus bene detentus.8s Under this

L.A. TIMES, Mar. 17, 1985, at 1. DEA affidavits filed in connection with seizure by the

DEA of cash and property of a Mexican lawyer, charged Mexican officials who partici-

pated in the drug syndicate headed by Rafael Caro-Quintero. Jim Schachter, Widespread

Camarena Case Bribery Alleged, L.A. TIMES, May 28, 1987, at 1. Among those charged were

the Mexican Federal Judicial Police, the Direccion Federal de Seguridad, an agency

similar to the U.S. Secret Service and FBI, Govemacion (an internal security agency),state police agencies, Mexican customs and the military. Id.

79. See, e.g., United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992); Reply Brieffor the United States on writ of certiorari to the U.S. Court of Appeals for the Ninth

Circuit at 3, United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991) (No. 91-

712), rev'd, 112 S. Ct. 857 (1992) [hereinafter Government's Reply Brief]. The United

States expressed in its reply brief that

[i]f [Dr. Alvarez-Machain] is repatriated to Mexico, the United States will never

have an opportunity to vindicate its sovereign interest in enforcing its criminallaws against him, despite the fact that he is charged with crimes that uniquely

implicate this Nation's interests. In the case of the deliberate kidnapping, tor-ture, and murder of a Special Agent of the United States Drug EnforcementAdministration, killed because of his official actions . . . the United States'interest in enforcing its own criminal laws is manifest.

Government's Reply Brief at 5, Alvarez-Machain (No. 91-712).80. See supra note 71 (discussing U.S. policy of extraditing its citizens).81. SeeJim Newton, Camarena's Abduction and Torture Described, L.A. TIMES, Dec. 10,

1992, at BI. One witness at the trial of Dr. Alvarez Machain testified that among thoseMexican politicians present during the torture were Defense Minister Juan Arevalo

Gardoqui, Interior Minister Manuel Bartlett Diaz, who is now the recently elected gov-ernor of the Mexican State of Purbla, Jalisco Governor Enrique Alvarez del Castillo,

Mexican Federal Judicial Police Director Manuel Ibarra Herrera and Mexican InterpolDirector Miguel Aldana Ibarra. Id.

82. See, e.g., United States v. Sobell, 142 F. Supp. 515 (S.D.N.Y. 1956), affd, 244F.2d 520 (2d Cir. 1957), cert. denied, 355 U.S. 873 (1958) (involving abduction by Mexi-

can officers who turned defendant over to U.S. authorities). Irregular renditions are

difficult to document because they occur outside the legal process, presupposing thecollusion of governmental agencies which would otherwise bring the matter to the at-

tention of the judiciary. M. Cherif Bassiouni, Unlawful Seizures and Irregular Rendition

Devices As Alternatives to Extradition, 7 VAND. J. TRANSNAT'L L. 25, 34 (1973).83. BAssIOUNI, supra note 1, at 190. Mala captus bene detentus translates to "a person

improperly seized may nevertheless properly be detained." Courts applying mala captus

bene detentus "will assert in personam jurisdiction without inquiring into the means by

1993] UNITED STATES v. AL VAREZ-MA CHAIN 139

principle, a court may recognize jurisdiction over an individualregardless of the method utilized for apprehension.84 Countriescontinue to resort to irregular renditions85 as nations persist infollowing the principle of mala captus bene detentus.86

An irregular rendition often results from a clandestineagreement between two countries to obtain the custody of anindividual.8 The agreement involves negotiations resulting involuntary, mutual, tacit approval by agents of both countries. 88

Unlike extradition by treaty, irregular renditions occur mostcommonly through law enforcement personnel, without involv-ing the executive powers of the states.89 The rendition is charac-terized as irregular because a government or national agencychooses to bypass a formal treaty provision or executive officeentrusted with handling extradition matters.9"

An apprehension by irregular rendition carries minimal vio-lations of international law.91 Rendition occurs through the as-sent of the countries involved.92 This voluntary assent by thegovernment of the asylum country avoids the violation of the asy-lum state's sovereignty and territoriality.93

which the presence of the defendant was secured." Id.; see also RESTATEMENT (THIRD)OF THE FOEIGN RELATIONS LAW OF THE UNITED STATES § 432 n.2 (1987) (discussingmala captus bene detentus).

84. Abramovsky & Eagle, supra note 12, at 81. "[I]rregular renditions have beenused to obtain jurisdiction over United States citizens, resident aliens, and nonresidentaliens. The class of persons most often subject to the irregular rendition process hasbeen aliens." Id.

85. See supra note 22 (defining irregular rendition).86. See Abramovsky & Eagle, supra note 12, at 82 (discussing utilization of appre-

hension through irregular rendition). As a general rule, irregular renditions have notbeen utilized in connection with misdemeanors and other minor offenses. Id.

87. BASSIOUN, supra note 1, at 196.88. Id. at 195. In the situation of an irregular rendition "the interest of the individ-

ual and the state of asylum ordinarily will differ .... Consequently, in the ordinaryirregular rendition situation, the apprehension of the individual will not be subject tojudicial scrutiny." Abramovsky & Eagle, supra note 12, at 72.

89. See BASsIOUNI, supra note 1, at 195 (distinguishing renditions between officialsfrom abduction); see supra note 22 (defining irregular rendition).

90. See BASSIOUNI, supra note 1, at 196 (discussing unlawful seizure).91. Id.92. See supra note 22 (defining irregular rendition). "Irregular renditions involve

the cooperation, or at least the acquiescence, of the asylum state in the effectuation ofthe apprehension." Abramovsky & Eagle, supra note 12, at 72.

93. Abramovsky & Eagle, supra note 12, at 72. States do not allege a violationbecause

[bly participating or at least acquiescing in the apprehension, the asylum statewill not be interested in alleging a breach of its territorial sovereignty. The


Irregular rendition is not uncommon in contemporary prac-tice.94 In the 1960's, the number of irregular renditions in-creased as a method of apprehension to combat drug traffick-ing.95 Irregular renditions are often necessary if formal extradi-tion channels have not been established,96 or if they. do exist,one party to the extradition agreement continually refuses tocomply with the treaty.917

C. Abduction as a Method of Apprehension,

Abduction is the most drastic alternative to the formalizedprocess of extradition.98 Abduction is a unilateral method ofgaining custody by which one state acts under the color of law"and seizes the individual within the jurisdiction of another statewithout that state's consent.100 The abductors seeking the indi-

only exceptions to this unwillingness may arise if the asylum state for politicalreasons decides to disclaim the irregular rendition as either the result of ultravires activity by some of its officials, or the product of political or economiccoercion by the requesting state.

Id.94. Abramovsky, Catch and Snatch Policy, supra note 12, at 155.95. Id. In present practice "[c] ountries have come to regard abductions as accepta-

ble... [t]his changed attitude has accordingly been reflected in [U.S.] domestic prac-tice." Wolfenson, supra note 3, at 707-08. "Late in the 1960's and in the 1970's, par-tially in response to the growing problem of international drug trafficking, UnitedStates police agents increasingly resorted to extra-legal extraterritorial apprehension."Martin Feinrider, Extraterritorial Abductions: A Newly Developing International Standard, 14AKRON L. REV. 27, 31 (1980).

96. CHRISTINE VAN DEN WIJNGAERT, THE POLITICAL OFFENSE ExCEPTION TO ExTRADI-

TION 154 (1980). Irregular renditions are needed because although "[gienerally, most'western countries' are willing to extradite terrorists among themselves ... many Afro-Asian countries are fundamentally opposed to extradition and accordingly, have be-come asylum havens for terrorists from all over the world." Id.

97. See, e.g., Steven Emerson & Richard Rothschild, Taking on Terrorists, U.S. NEWS& WoRLD REP., Sept. 12, 1988, at 26. Italy refused to extradite Mohammed Abbas andMohammed Hamadei, who were suspected terrorists that hijacked the Achille Lauroand murdered Leon Klinghoffer, a United States citizen, to the United States. Id. Asimilar situation arose when the United States sought Mohammed Hamadei from Ger-many because he was a suspected leader in the 1987 hijacking of a Trans World Airlinesjet on which U.S. Navy diver Robert Stethem, a passenger, was killed. Lori Santos, U.S.Moves On Extradition of Hijacker, WASH. NEWS, Jan. 19, 1987, at AS.

98. SHEARER, supra note 27, at 75. Shearer characterizes abduction as "such a man-ifestly extra-legal act, and in practice so hazardous and uncertain, that it is unworthy ofserious consideration as an alternative method to extradition in securing custody offugitive offenders." Id.

99. BAssiOUNI, supra note 1, at 194 (explaining agents cannot act as complete vol-unteers).

100. Id. at 191; Abramovsky & Eagle, supra note 12, at 52 (defining abduction).

1993] UNITED STATES v. ALVAREZMACHAIN 141

vidual at issue are usually government agents"0' and tradition-ally, nations have considered abduction illegal.10 2

States have territorial jurisdiction within their borders tomake decisions without interference from: other states regardinginternal and external affairs.' 0 The illegality of abduction stemsfrom the violation of the asylum state's sovereignty and territori-ality; the seizing state enters the asylum state and apprehendsthe individual without authorization.0 4 The United States, how-ever, has created ajudicially sanctioned doctrine recognizing thelegitimacy of abduction in obtaining personal jurisdiction. 5

1. The Ker-Frisbie Doctrine

Two U.S. Supreme Court cases, Ker v. IllinoisO6 and Frisbie v.Collins,10 7 laid the foundation for the Ker-Frisbie doctrine. TheKer-Frisbie doctrine holds that a U.S. court will recognize jurisdic-tion over a defendant before that court, regardless of the meansutilized to apprehend the individual.10 8 The United States em-braced this doctrine and U.S. courts continue to apply it.'0 9

The Ker-Frisbie doctrine originated in 1886 when the U.S.Supreme Court, in Ker v. Illinois, addressed apprehension of a

101. BAssIoUNI, supra note 1, at 194. The abductors cannot be complete volun-

teers because international law protects the sovereignty and territoriality of states andthus restricts states' conduct. Id. International law does not apply to persons who act intheir private capacity. Id.

102. Id. at 194. In addition, the United Nations Security Council and GeneralAssembly have denounced abduction as contrary to international law and the U.N.Charter. Abramovsky & Eagle, supra note 12, at 63-64.

103. OPPENHEIM, supra note 29, at 325. "As all persons and things within the terri-tory of a State fall under its territorial supremacy, each State has jurisdiction overthem." Id. "It follows from the principle of territorial supremacy that States must notperform acts of sovereignty within the territory of other States." Id. at 327-28; see ALAN

JAMES, SOVEEIGN STATEHOOD 200 (1986).104. BAssiOUNI, supra note 1, at 194.105. Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952).

The Ker-Frisbie doctrine arose from the holdings of both cases. Ker v. Illinois, 119 U.S.436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952).

106. 119 U.S. 436 (1886).107. 342 U.S. 519 (1952).108. Frisbie, 342 U.S. at 522 (1952); Ker, 119 U.S. at 440 (1886). Abramovsky and

Eagle state that "[t]he United States relied primarily upon the Ker-Frisbie doctrine inmaintaining that power to prosecute would not be impaired by illegality in the acquisi-tion of custody so long as the defendant is afforded a fair trial." Abramovsky & Eagle,supra note 12, at 56.

109. BAssiou.m, supra note 1, at 193.

142 FORDHAM INTERNATIONAL LAWJOURNTAL [Vol. 17:126

defendant outside the operation of an extradition treaty.110 Mr.Ker, an American citizen, was indicted for embezzlement in Illi-nois and fled to Peru to avoid punishment."' The Governor ofIllinois asked the U.S. Secretary of State to invoke the extradi-tion treaty between the United States and Peru, to expedite Mr.Ker's return.1 2 Accordingly, the United States issued a warrant,and dispatched a messenger'"1 to obtain Mr. Ker's custody.1 1 4

The messenger arrived in Peru with the necessary documents toreceive Mr. Ker pursuant to the U.S.-Peru Extradition Treaty." 5

The messenger, however, could not invoke the extradition treatybecause Peru had no operating government at the time." 6

Faced with no feasible way to enforce the treaty, the messengerabducted Mr. Ker in order that he could be returned to theUnited States to stand trial." 17

110. Ker v. Illinois, 119 U.S. 436, 438 (1886). "The United States Supreme Courtfirst evaluated the legality of apprehension methods other than traditional extraditionin the landmark case of Ker v. illinois." Abramovsky & Eagle, supra note 12, at 54.

111. Ker, 119 U.S. at 437-38. Mr. Ker was indicted, tried and convicted in the Crim-inal Court of Cook County, Illinois for embezzlement and larceny. Id. at 437.

112. Id. at 438. In order to obtain Mr. Ker, the "governor Hamilton, of Illinois,made his requisition, in writing, to the Secretary of State of the United States, for awarrant requesting the extradition of the defendant, by the Executive of the Republicof Peru, from that country to Cook County...." Id.

113. "The surrender was to be made to a Mr. Henry G. Julian, a Pinkertonagent... ." Andreas F. Lowenfeld, U.S. Law Enforcement Abroad: The Constitution andInternational Law, Continued, 84 AM. J. Irrr'L. L. 444, 460 (1990). Pinkerton agents werethe precursors to the U.S. marshals. Abramovsky, Catch and Snatch Policy, supra note 12,at 157 n.21.

114. Ker, 119 U.S. at 438. In attempt to obtaining Mr. Ker, "on the first day ofMarch, 1883, the President of the United States issued his warrant, in due form, di-rected to Henry G. Julian, as messenger, to receive the defendant from the authoritiesof Peru, upon a charge of larceny, in compliance with the treaty. . . ." Id. In accordwith the existing bilateral treaty, the United States issued a warrant authorizing a privateinvestigator to obtain custody of Mr. Ker. Charles Fairman, Ker v. Illinois Revisited, 47AM.J. INT'L. L. 678 (1953).

115. Ker, 119 U.S. at 438.116. Fairman, supra note 114, at 684-85. The warrant for arrest could not be

served because of a war between Chile and Peru. The messenger could not gain accessto the Peruvian government because Chilean forces occupied the capital. Id.

117. Ker, 119 U.S. at 438-39. The messenger[florcibly and with violence arrested him, placed him on board the UnitedStates vessel Essex, in the harbor of Callao, kept him a close prisoner until thearrival of that vessel at Honolulu, where, after some detention, he was trans-ferred in the same forcible manner on board another vessel, to wit, the City ofSydney, in which he was carried a prisoner to San Francisco, in the State ofCalifornia.... The defendant arrived in the city of San Francisco on the 9thday of July thereafter, and was immediately placed in the custody of [Frank]

1993] UNITED STATES v AL VAREZ-MACHAIN

Mr. Ker contested the Court's jurisdiction because theUnited States failed to invoke the extradition treaty.118 Mr. Kerclaimed that through his physical presence in the country, heacquired a right of asylum in Peru." 9 The Court rejected Mr.Ker's argument, calling it absurd for a party fleeing the UnitedStates to be entitled to a right of asylum.'2 0

Mr. Ker also alleged a constitutional due process viola-tion.' 2 1 Although the Court acknowledged that the U.S. messen-ger had kidnapped Mr. Ker, the Court failed to find any constitu-tional violation. 22 The Court held that due process rights attachonly to post-indictment activities. 23 Despite the irregularities inthe manner utilized to bring Mr. Ker to the United States, theCourt concluded that Mr. Ker could stand trial. 124

In 1952, the Supreme Court again addressed abduction inthe case of Frisbie v. Collins.'21 In Frisbie, Mr. Collins brought ahabeas corpus 12 petition alleging that his forcible seizure fromChicago to Michigan by state officials violated the due process

Warner, [appointed by the Governor of Illinois] under the order of the Gover-nor of California, and, still a prisoner, was transferred by him to Cook County

Id.118. Id. at 441.119. Id.120. Id. at 442.121. Id. at 439-40.122. Id. at 443.123. Id. at 440. The Supreme Court upheld Mr. Ker's conviction and stated:'due process of law'.. . is complied with when the party is regularly indicted bythe proper grand jury in the State court, has a trial according to the forms andmodes prescribed for such trials, and when, in that trial and proceedings, he isdeprived of no rights to which he is lawfully entitled.

Id.124. Id. "[M]ere irregularities in the manner in which he may be brought [does

not entitle him to] say that he should not be tried at all for the crime with which he ischarged... ." Id. The Ker court further stated that

[t] here are authorities of the highest respectability which hold that such forci-ble abduction is no sufficient reason why the party should not answer whenbrought within the jurisdiction of the court which has the right to try him forsuch an offense, and presents no valid objection....

Id. at 444.125. 342 U.S. 519 (1952).126. Luciano v. Murphy, 160 Misc. 573, 290 N.Y.S. 1011 (1936). "The sole func-

tion of a writ of habeas corpus is to release from unlawful imprisonment." Id. at 577.The function of a writ of habeas corpus is to test the legality of the detention or impris-onment of a prisoner. BLACK'S LAw DIcrIoNmAY 709 (6th ed. 1990).

144 FORDHAMINTERATIONAL LAWJOURNAL [Vol. 17:126

clause of the U.S. Constitution 12 7 and the Federal KidnapingAct. 2 8 The Court disagreed, and in a unanimous decision, over-ruled the U.S. Court of Appeals for the Sixth Circuit. 29 TheCourt, restating its ruling in Ker, held that a person may be triedwithin a court's jurisdiction even if brought by forcible abduc-tion.'5 0 The Court did not distinguish this case from Ker,although Frisbie involved domestic interstate abduction, whichdid not involve an extradition treaty.' 3 ' The Ker and Frisbie deci-sions formed the Ker-Frisbie doctrine. 2

2. Application of the Ker-Frisbie Doctrine

Most cases concerning extraordinary apprehensions cite thejudicially sanctioned Ker-Frisbie doctrine.'33 The doctrine re-mained unmodified and uncontested until a decision renderedin 1974 in United States v. Toscanino.3 In Toscanino, the U.S.Court of Appeals for the Second Circuit created the Toscaninoexception to Ker-Eisbie by refusing to apply the doctrine to spe-cific situations. 13 5 The Toscanino exception requires a court to

127. U.S. CONST., amend. XIV.128. Frisbie, 342 U.S. at 520; see Federal Kidnapping Act, 18 U.S.C. § 1201 (1988 &

Supp. III 1991).129. Frisbie, 342 U.S. at 522.130. Id. "[T] he power of a court to try a person for a crime is not impaired by the

fact that he had been brought within the court's jurisdiction by reason of a 'forcibleabduction'." Id.

131. Id. at 519.132. BASSiOUNI, supra note 1, at 205. The Ker-Frisbie doctrine was created by the

two cases and read to condone extraterritorial apprehension, including abduction. Id.at n. 49. The Supreme Court upheld the Ker-Frisbie doctrine in Gerstein v. Pugh, 420U.S. 103 (1975), where officials arrested Mr. Pugh and an accomplice in Dade County,Florida. Id. at 105. The officials made the arrest based solely on a prosecutor's infor-mation. Id. The respondents claimed a constitutional right to ajudicial hearing. Id. at107. The court held that a judicial hearing was not a prerequisite to prosecution byinformation and furthermore stated "[n]or do we retreat from the established rule thatillegal arrest or detention does not void a subsequent conviction." Id. at 119.

133. See, e.g., United States v. Cadena, 585 F.2d 1252 (5th Cir. 1978); United Statesv. Yanagita, 552 F.2d 940 (2d Cir. 1977); United States v. Lovato, 520 F.2d 1290 (9th Cir.1975); United States v. Lira, 515 F.2d 68 (2d Cir.), cat. denied, 423 U.S. 847 (1975);United States ex. rel. Calhoun v. Twomey, 454 F.2d 326 (7th Cir. 1971); United States v.Sherwood, 435 F.2d 867 (10th Cir. 1970); Ex parte Lamar, 274 F. 160 (2d Cir. 1921),affid, 260 U.S. 711 (1922). State courts almost unanimously follow Ker-Fisbie. Abramov-sky, Catch and Snatch Policy, supra note 12, at 205.

134. 500 F.2d 267 (2d Cir. 1974).135. Toscanino, 500 F.2d at 275. The court stated thatwe are satisfied that the Ker-Frisbie rule cannot be reconciled with the SupremeCourt's expansion of the concept of due process, which now protects the ac-

1993] UNITED STATES v. AL VARE7-MA CHAIN 145

divest itself of jurisdiction over a person when the governmentacquires the person's presence by acts that are so deliberate, un-necessary and unreasonable" 6 as to "shock the conscience.'13 7

The United States charged and convicted Francisco Tos-canino, an Italian citizen, with conspiracy to import and dis-tribute narcotics in the United States.1 3 1 Paid agents of theUnited States lured the defendant from his home in Monte-video, Uruguay and kidnapped him pursuant to a request re-ceived from the United States.'3 9 The abductors knocked Mr.Toscanino unconscious, blindfolded him, and drove the suspectto Brazil to release him to the Brazilian authorities.' 40 The Bra-zilian authorities subjected Mr. Toscanino to a lengthy interroga-tion and detained him for seventeen days before placing him on

cused against pretrial illegality by denying to the government the fruits of itsexploitation of any deliberate and unnecessary lawlessness on its part .....[W]hen an accused is kidnapped and forcibly brought within the jurisdiction,the court's acquisition of power over his person represents the fruits of thegovernment's exploitation of its own misconduct. Having unlawfully seizedthe defendant in violation of the Fourth Amendment, which guarantees 'theright of the people to be secure in their persons... against unreasonable...seizures,' the government should as a matter of fundamental fairness be obli-gated to return him to his status quo ante.

Id.136. Id. The court held that "[a]ccordingly we view due process as now requiring a

court to divest itself of jurisdiction over the person of a defendant where it has beenacquired as the result of the government's deliberate, unnecessary and unreasonableinvasion of the accused's constitutional rights." Id.

137. Id. The court stated that it was "compelled to conclude that the proceedingsby which this conviction was obtained do[es] more than offend some fastidious squea-mishness or private sentimentalism about combatting crime too categorically. This isconduct that shocks the conscience." Id. (emphasis added). The Supreme Court in Rochinv. California, used the terms 'shocks the conscience' in describing the conduct of stateofficers who authorized use of an emetic to extract morphine capsules from stomach ofdefendant. Rochin v. California, 342 U.S. 165, 172 (1951). The Court in Rochin statedthat

[t]his is conduct that shocks the conscience. Illegally breaking into the privacyof the petitioner, the struggle to open his mouth and remove what was there,the forcible extraction of his stomach's contents - this course of proceedingby agents of government to obtain evidence is bound to offend even hardenedsensibilities:

Id.138. Toscanino, 500 F.2d at 268; 21 U.S.C. § 963 (1988).139. Toscanino, 500 F.2d at 269. On January 6, 1973, Mr. Toscanino was lured

from his home in Montevideo, Uruguay to a deserted bowling alley in Montevideo by atelephone call. Id. The United States did not make any formal or informal request ofthe Uruguayan government for the extradition of Francisco Toscanino. Id. at 270.

140. Id. at 269.


a flight to the United States. 141 At trial, Mr. Toscanino claimedthat the United States had knowledge that the Brazilian policetortured him. 142 The Second Circuit, relying on Supreme Courtopinions subsequent to the Frisbie decision that expanded thedue process guarantee to include pre-trial conduct, 143 createdthe Toscanino exception to the Ker-Frisbie doctrine as a result ofthe horrific treatment Mr. Toscanino received. 144

The Second Circuit continues to recognize this excep-

141. Id. at 270. The court detailed Mr. Toscanino's horror:For seventeen days Toscanino was incessantly tortured and interrogated [Tos-canino's] captors denied him sleep and all forms of nourishment for days at atime. Nourishment was provided intravenously in a manner precisely equal toan amount necessary to keep him alive. Reminiscent of the horror stories toldby our military men who returned from Korea and China, Toscanino wasforced to walk up and down a hallway for seven or eight hours at time. Whenhe could no longer stand he was kicked and beaten but all in a manner con-trived to punish without scarring. When he would not answer, his fingers werepinched with metal pliers. Alcohol was flushed into his eyes and nose andother fluids... were forced up his anal passage. Incredibly, these agents ofthe United States government attached electrodes to Toscanino's earlobes,toes, and genitals. Jarring jolts of electricity were shot throughout his body,rendering him unconscious for indeterminate periods of time but again leav-ing no physical scars.

Id. These facts were alleged by Mr. Toscanino in the district court upon his motion todismiss the proceedings which was denied by the lower court. Id. The Court of Appealsaccepted Mr. Toscanino's allegations for purposes of the appeal. Id. at 269-71.

142. Id. at 270. Mr. Toscanino claimed that the U.S. Attorney for the Eastern Dis-trict of New York was regularly informed of his interrogations. Id.

143. Id. at 272-75. The court stated that due process was no longer limited to a fairtrial, but included pre-trial conduct of law enforcement. Id.; see, e.g., United States v.Russell, 411 U.S. 423 (1973) (noting defense to criminal charge may be founded onintolerable degree of government participation); Miranda v. Arizona, 384 U.S. 436(1966) (prohibiting use of defendant statements elicited without warning defendant ofconstitutional rights); Wong Sun v. United States, 371 U.S. 471 (1963) (finding arrestsof defendants illegal when not within probable cause of Fourth Amendment); Mapp v.Ohio, 367 U.S. 643 (1961) (holding evidence obtained without warrant constituted ille-gal search and seizure); Silverman v. United States, 365 U.S. 505 (1961) (eavesdroppingby unauthorized persons violates Fourth Amendment rights); Rochin v. California, 342U.S. 165 (1952) (expanding due process to include pre-trial lawlessness). The courtalso stated that forcible abductions violated article 2, paragraph 4 of the U.N. Charterand article 17 of the OAS Charter, which protect the territorial integrity of memberstates. Toscanino, 500 F.2d at 277.

144. Toscanino, 500 F.2d at 275. The court stated that "[slociety is the ultimateloser when, in order to convict the guilty, it uses methods that lead to decreased respectfor the law." Id. at 274. On remand, the district court found that the defendant failedto prove such torturous conduct occurred and the district court therefore neverdivested itself of jurisdiction. United States v. Toscanino, 398 F. Supp. 916 (E.D.N.Y.1975).


tion.14 Cases following Toscanino, however, have further re-fined the Toscanino exception. In United States ex rel. Lujan v.Gengler,146 the defendant was charged with conspiracy to importand distribute heroin in the United States and petitioned for awrit of habeas corpus on the grounds that his abductors violateddue process.' 47 The U.S. Court of Appeals for the Second Cir-cuit considered the Toscanino decision with the arresting agents'actions and concluded that mere irregularities in the agents'conduct would not divest jurisdiction.'48 Similar to the standardset forth in Toscanino, the court held that an agent's conductmust be outrageous for the Toscanino exception to apply. 149

In United States v. Lira,150 Chilean authorities arrested the

145. See, e.g., United States v. Reed, 639 F.2d 896 (2d Cir. 1981); United States v.Lira, 515 F.2d 68 (2d Cir.), cert. denied, 423 U.S. 847 (1975); United States ex rel. Lujanv. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001 (1975).

146. 510 F.2d 62, 63 (2d Cir.), cert. denied, 421 U.S. 1001 (1975). Mr. Lujan, alicensed pilot, was hired by an undercover American agent to fly to Bolivia. Id. Afterarriving in Bolivia the Bolivian police acting on behalf of the U.S. apprehended Mr.Lujan and the following day placed Lujan on a plane to New York. Federal agentsarrested Mr. Lujan in New York. Id.

147. Lujan, 510 F.2d at 63. The Court of Appeals for the Second Circuit was "todetermine whether [the] recent decision in United States v. Toscanino precludes thecourt below from asserting jurisdiction over the protagonist, JulioJuventino Lujan, anArgentine citizen." Id. (citation omitted).

148. Id. at 65. The court stated[i]n recognizing that Ker and Frisbie no longer provided a carte blanche togovernment agents bringing defendants from abroad to the United States by 7

the use of torture, brutality and similar outrageous conduct, we did not intendto suggest that any irregularity in the circumstances of a defendant's arrival inthe jurisdiction would vitiate the proceedings of the criminal court.

Id. (emphasis in original).149. Id. at 65. The Lujan and Toscanino courts cited United States v. Rochin as an

example of when the Ker-Frisbie rule would yield. Id. In Rochin an emetic solution wasforced through a tube into a defendant's stomach to recover two morphine capsuleswhich the defendant had swallowed. Rochin v. California, 342 U.S. 165 (1952). Thedefendant's conviction was reversed by the Supreme Court because government's con-duct was found to "shock the conscience [and to] offend a sense ofjustice." Id. at 172-73. In Lujan, however, the court noted that there was a lack of complex shocking gov-ernmental conduct sufficient to violate due process. Lujan, 510 F.2d at 66. The courtnoted that

Lujan does not allege that a gun blow knocked him unconscious when he wasfirst taken into captivity, nor does he claim that drugs were administered tosubdue him for the flight to the United States. Neither is there any assertionthat the United States Attorney was aware of his abduction, or of any interro-gation. Indeed, Lujan disclaims any acts of torture, terror, or custodial inter-rogation of any kind.

Id.150. 515 F.2d 68 (2d Cir.), cert. denied, 423 U.S. 847 (1975).


defendant and allegedly tortured him.15' The defendantclaimed that U.S. Drug Enforcement Agents ("DEA") witnessedhis torture.5 2 The Second Circuit, however, found insufficientevidence demonstrating that the DEA agents were aware of anyunacceptable harm.5 3 The court therefore, chose not to invokethe Toscanino exception.' 54

The Second Circuit further qualified the Toscanino excep-tion in United States v. Reed,'55 which involved a defendant whohad fled the United States in order to avoid charges of securitiesfraud.'56 Because the defendant was not severely mistreated, theSecond Circuit distinguished this case from Toscanino.'57 Focus-ing on the defendant's flight, the court concluded that jurisdic-tion should not divest when the defendant is a fugitive, regard-less of any illegal means used to apprehend the defendant. 58

With these additional qualifications, the Toscanino excep-tion has met with little success. 5 9 Although courts have referredto the exception, few, have applied it to. any set of specific cir-

151. Lira, 515 F.2d at 70. The defendant was arrested in Santiago, Chile for a nar-cotics charge. Id. Mr. Lira claimed that he "was blindfolded by the Chilean police,beaten, strapped nude to a box spring, tortured with electric shocks, and ques-tioned... ." Id. at 69. According to Mr. Lira, the torture lasted over a four week periodbefore the defendant was put onto a plane for the United States. Id.

152. Id. at 69-70. The defendant alleged that Chilean officials were acting on be-half of the United States. Id. The court, however, found that the "only suggestion ofpossible involvement on the part of United States officials comes from Mellafe's [Lira'sactual name] testimony that he heard English spoken during the time of his tor-ture... ." Id. at 71.

153. Id.154. Id. at 69.155. 639 F.2d 896 (2d Cir. 1981).156. Id. at 899-900.157. Id. at 901-02. The court noted that in this case "there was none of the 'cruel,

inhuman and outrageous treatment allegedly suffered by Toscanino.' . . . Accordingly,we hold that the alleged circumstances of Reed's arrest do not sink to the level of aviolation of due process." Id. at 902.

158. Id. at 903. The court stated:we see no pattern of repeated abductions necessitating exercise of our supervi-sory power here in the interests of the greater good of preserving respect forlaw. Appellant, a fugitive from justice with no respect for the law whatsoever,is hardly in a position to urge otherwise.

Id.159. See e.g., United States v. Reed, 639 F.2d 896 (2d Cir. 1981); United States v.

Lira, 515 F.2d 68 (2d Cir.), cert. denied, 423 U.S. 847 (1975); United States ex rel. Lujanv. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001 (1975). See also supra notes146-58 and accompanying text (setting forth basis of non-application of Toscanino ex-ception).

1993] UNTE STATES v. AL VARE-MACHAIN

cumstances.' 6° Courts recognizing the exception have not yetfound a case where government conduct rises to the level that"shocks the conscience. " 16

1 Furthermore, some courts have re-jected the Toscanino exception in its entirety, thereby contribut-ing to its ineffectiveness. 62

3. United States v. Rauscher

United States v. Rauscher 63 represents a significant case estab-lishing U.S. legal principles regarding a treaty violation. 64 InRauscher, the United States charged Mr. Rauscher, a U.S. officer,with murdering a fellow national on an American merchantship. 165 Mr. Rauscher subsequently fled to England to escapeprosecution. 66 The United States invoked the Webster-Ashbur-ton Treaty of 1842 to seek Mr. Rauscher's extradition. 67 TheWebster-Ashburton Treaty provided for the extradition of crimessuch as murder, piracy, arson, robbery, and forgery.' 68 Britaincomplied with the request and extradited the defendant. 69

At the time of the extradition request, the U.S. DistrictCourt for the Southern District of New York had instituted pro-

160. See United States v. Toscanino, 389 F. Supp. 916 (E.D.N.Y. 1975). Even inToscanino the exception did not apply. The district court on remand found the defend-ant failed to prove his allegations of extreme torture. Id.

161. See e.g., United States v. Cordero, 668 F.2d 32 (1st Cir. 1987); see supra notes146-58 and accompanying text (citing Second circuit cases not reaching Toscanino stan-dard).

162. BAssIouNI, supra note 1, at 204-05 (discussing limited application of Toscaninoexception); Abramovsky, Catch and Snatch Policy, supra note 12, at 159 & n.38 (discuss-ing difficulty of invoking Toscanino exception). The Fifth and Eleventh circuits havenot accepted the Toscanino exception. The exception was distinguished by the First,Third, Seventh, Eighth and Ninth circuits. See United States v. Sorren, 605 F.2d 1211(1st Cir. 1979); United States v. Peltier, 585 F.2d 314 (8th Cir.), cert. denied, 440 U.S. 945(1978); United States v. Marzano, 537 F.2d 257 (7th Cir.), cert. denied, 429 U.S. 1038(1976); United States v. Lovato, 520 F.2d 1270 (9th Cir.), cert. denied, 423 U.S. 985(1975); Waits v. Mc Gowan, 516 F.2d 203 (3d Cir. 1975).

163. 119 U.S. 407 (1886).164. Id, (establishing the doctrine of specialty).165. Id. at 409; RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE

UNrrr STATES § 477 n.1 (1987).166. Rauscher, 119 U.S. at 409.167. Id. at 410; Convention as to Boundaries, Suppression of Slave Trade and Ex-

tradition (Webster-Ashburton Treaty) of 1842, 8 Stat. 572, T.S. No. 119 [hereinafterWebster-Ashburton Treaty].

168. Rauscher, 119 U.S. at 411; Webster-Ashburton Treaty, supra note 167, art. 10, 8Stat at 576, T.S. No. 119.

169. Rauscher, 119 U.S. at 410.


ceedings against Mr. Rauscher for an offense not included in thetreaty.1 70 The U.S. Supreme Court considered the implicationsof enforcing the doctrine of specialty.1 7 1 This doctrine providesthat a defendant extradited for a specific crime cannot be prose-cuted for another offense.1 72 The Court held that a person ob-tained through the operation of an extradition treaty can onlybe tried for one of the offenses specified in the treaty.17 - In theevent the person is charged with other crimes outside the scopeof the treaty, that person should be afforded the time and op-portunity to return to the asylum country. 74 The rationale be-hind the doctrine of specialty derives from the principle that theevidence necessary to extradite or prosecute the defendant forone crime may not be sufficient for another. 75 Once the sus-pect is returned to the asylum country, a requesting state may re-formalize its extradition request in order that the suspect may beextradited for a separate offense. 76

D. Developments in Extraordinary Apprehension

The United States continues to be involved in cases of ex-traordinary apprehension. 77 In Jaffe v. Smith,'7 1 the U.S. agentsabducted a Canadian citizen to stand trial in the UnitedStates. 79 Similarly, in United States v. Verdugo-Urquidez,'80 theUnited States sought Mr. Rene Martin Verdugo-Urquidez, oneof the leaders of the organization responsible for the murder of

170. Id. at 409. The United States prosecuted Mr. Rauscher for the lesser offenseof cruel and unusual punishment. Id.

171. Id.172. Id. at 432. The doctrine of specialty guarantees a defendant extradited for a

specific crime under an extradition treaty will be tried only for that crime. Id. White-man, supra note 18, § 46, at 1095. "Most extradition laws and treaties contain a provi-sion prohibiting the requesting State from prosecuting or punishing the person extra-dited for any offense committed prior to the extradition, other than that for whichextradition was granted. This is often referred to as the 'rule of specialty'." Id.

173. Rauscher, 119 U.S. at 430.174. Id. But see, State v. Vanderpool, 39 Ohio St. 237 (1883) (requesting state may

not prosecute even if offense is enumerated within treaty).175. See Rauscher, 119 U.S. at 432.176. Id. at 430.177. See, e.g., United States v. Alvarez-Machain, 112. S. Ct 2188 (1992); Jaffe v.

Smith, 825 F.2d 304 (11th Cir. 1987).178. 825 F.2d 304 (11th Cir. 1987).179. Id. at 305.180. 939 F.2d 1341 (9th Cir. 1991).

1993] UNiTED STATES v. ALVAREZ-MACHAIN

DEA Agent Enrique Camarena.'' The U.S. intended to appre-hend Mr. Verdugo via an irregular rendition.18 2 An examinationof the decisions in Jaffe and Verdugo aids in understanding U.S.policy regarding extraterritorial apprehension.

1. Jaffe v. Smith

The United States and Canada have historically enjoyedfavorable relations in extradition practice.'83 The United Statesand Canada have had an extradition treaty in place since1842.184 For the most part, rendition of individuals has occurredthrough international cooperation and an extradition treatywithout any problem or irregularity.8 In Jaffe v. Smith, 8 6 how-ever, rendition of the defendant Sydney Jaffe occurred outsidethe scope of the U.S.-Canada Extradition Treaty.187

On September 24, 1981, U.S. agents' 88 abducted Mr. Jaffe, aCanadian citizen, from his home in Toronto to stand trial inFlorida state court for land sale violations. 189 The Florida statecourt subsequently tried and convicted Mr. Jaffe, 190 who ap-pealed his conviction, seeking habeas corpus relief from the U.S.

181. United States v. Verdugo-Urquidez, 856 F.2d 1214, 1215 (9th Cir. 1988).182. United States v. Caro-Quintero, 745 F. Supp. 599, 602 n.5 (C.D. Cal. 1990).183. Jaffe v. Smith, 825 F.2d 304 (l1th Cir. 1987); Brief of the Government of

Canada as Amicus Curiae in Support of Affirmance on writ of certiorari to the Court ofAppeals for the Ninth Circuit at 2, United States v. Alvarez-Machain, 946 F.2d 1466 (9thCir. 1991) (No. 91-712), 112 S. Ct. 857 (1992) [hereinafter Brief of the Government ofCanada].

184. U.S.-Canada Extradition Treaty, Dec. 3, 1971, 27 U.S.T. 983, T.I.A.S. No. 8237[hereinafter U.S.-Canada Treaty].

185. Brief of the Government of Canada, supra note 183, at 2, Alvarez-Machain(No. 91-712).

186. 825 F.2d 304 (lth Cir. 1987).187. Jaffe, 825 F.2d at 306.188. Jaffe v. Boyles, 616 F. Supp. 1371, 1373 (W.D.N.Y. 1985). Agents of Accred-

ited Surety & Casualty Co., Timm Johnsen and Daniel J. Kear seized Mr. Jaffe in To-ronto, Canada as he returned home from a jog. Id. at 1373. Mr. Jaffe was takenthrough Ontario, across the Canadian-American border to the Niagara Falls Interna-tional Airport and forced to board a plane to Orlando, Florida. Id.

189. Id. at 1373-74. Authorities previously arrested Mr. Jaffe in Florida on August7, 1980. Id. at 1373. Mr. Jaffe was released when a Florida bonding company postedU.S.$137,500 in bail bonds. Id. Mr. Jaffe failed to appear before the Florida courtallegedly due to health problems, which prompted the U.S. to abduct him from hishome in Canada. Id.

190. Id. Mr. Jaffe was convicted and sentenced to consecutive jail terms totaling145 years. Id. at 1374.

152 FORDHAMINTERNVATIONALLAWJOURNAL [Vol. 17:126

District Court for the Middle District of Florida.191 On appeal tothe U.S. Court of Appeals for the Eleventh Circuit, Mr. Jaffemaintained that the Florida State Court did not have jurisdictionover him because the United States acquired jurisdiction by ab-ducting him from Canada violating the U.S.-Canada ExtraditionTreaty.112 The Eleventh Circuit, citing Ker, stated that a defend-ant may not claim a treaty violation unless governmental actioncan be proved in the defendant's rendition. 9 The UnitedStates denied involvement in the abduction of Mr. Jaffe and thestate trial court found no evidence of U.S. government participa-tion.194 Thus, the court held that jurisdiction over Mr. Jaffe wasproper.

19

Canada, enraged by the alleged abduction, attempted tohalt proceedings against Mr.Jaffe.' 96 Through diplomatic notes,Canada demanded Mr. Jaffe's return.' 97 The U.S. Departmentof Justice and Department of State subsequently requested thatFlorida grant Mr. Jaffe an early release. 9 The former Secretary

191. Jaffe v. Smith, 825 F.2d at 306 (l1th Cir. 1987). This federal habeas corpuspetition was originally dismissed for failure to exhaust state remedies. Id. On remand,the magistrate recommended that the district court decline to accept jurisdiction ofJaffe's case. Id. The district court accepted the magistrate's recommendation and be-cause Mr. Jaffe may be considered an 'abuser' of the writ or because he may be consid-ered a fugitive from justice. Id. An appeal to the Court of Appeals followed. Id.

192. Id. at 306; U.S.-Canada Treaty, supra note 184, 27 U.S.T. 983, T.I.A.S. No.8237.

193. Jaffe, 825 F.2d at 307. "Unless a defendant can prove that she or he was re-moved from the asylum state by governmental action, and therefore establish a treatyviolation, she or he may not object to trial in the United States." Id.

194. Id. at 307-08. The court stated that "[tjhe present appeal presents a clear caseof individual citizens acting outside the parameters of a treaty." Id. at 307. The statetrial court determined that

there is no evidence in this record thus far that this witness [one of the bonds-men] or any other person involved in the taking of the defendant received anyinstruction, directions, aid, comfort, succor or anything else from any author-ized agency of the United States, the State of Florida, [or] the Seventh JudicialCircuit. ...

Id. at 308. Canada later requested the extradition of the two bounty hunters, DanielKear and Timm Johnsen who were involved with the kidnapping. The United Statesgranted Canada's request. Marian Nash Leich, Contemporary Practice of the United StatesRelating to International Law, 78 Am. J. Ir'L L. 200, 208 (1984).

195. Jaffe, 825 F.2d at 307-08.196. Brief of the Government of Canada, supra note 183, at 11, Alvarez-Machain

(No. 91-712).197. Id.198. Memorandum from Secretary of State George P. Shultz to State of Florida

Probation and Parole Commission (July 22, 1983).

UNTED STATES v. AL VAREZ-MACHAIN

of State, George P. Shultz, in a letter to the Florida probationcommission, strongly expressed his disapproval of the situa-tion.199 The former Secretary of State felt that the U.S.-CanadaExtradition Treaty not only could have been utilized to obtainMr. Jaffe's return, but should have been invoked.20 0 Former Sec-retary Shultz acknowledged Canada's outrage at the alleged kid-napping, as the abduction violated the U.S.-Canada ExtraditionTreaty, international law, and Canada's sovereignty. 201 Mr.Shultz's letter emphasized that the strain on U.S.-Canada rela-tions resulting from the matter needed to be alleviated.20 2 TheUnited States subsequently released Mr. Jaffe and returned himto Canada in 1983.203

2. The Camarena Investigation

Unlike Canada, Mexico has not enjoyed the same successwith the United States in the area of extraterritorial apprehen-sions.20 4 Extraterritorial apprehension between the UnitedStates and Mexico has received widespread attention recently inboth United States v. Verdugo-Urquidez2°5 and United States v. Alva-rez-Machain.206 Both cases involved extraterritorial apprehen-sions and evolved from the events surrounding the Camarenainvestigation.20 7

Drug Enforcement Agent Enrique Camarena had been as-

199. Id.200. Id. Former Secretary of State Shultz wrote that the U.S.-Canada Treatycould have been utilized to secure Mr. Jaffe's return... [a]s no good reasonappears why the extradition treaty was not utilized to secure Mr. Jaffe's return,it is perfectly understandable that the Government of Canada is outraged byhis alleged kidnapping, which Canada considers a violation of the treaty andof international law, as well as an affront to its sovereignty.

Id.201. Memorandum from Secretary of State George P. Shultz to State of Florida

Probation and Parole Commission (July 22, 1983).202. Id.

.203. See Brief of the Government of Canada, supra note 183, at 11, Alvarez-Machain(No. 91-712). The United States released Mr. Jaffe from prison on September 2, 1983.Jaffe v. Boyles, 616 F. Supp at 1374. After Mr. Jaffe's return to Canada, the Floridaprosecutor sought extradition of Mr. Jaffe on other grounds. Id.

204. See, e.g., United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992).205. 939 F.2d 1341 (9th Cir. 1991).206. 112 S. Ct. 2188 (1992).207. Verdugo, 939 F.2d at 1343 (acquiring custody of Mr. Verdugo through irregu-

lar rendition); Alvarez-Machain, 112 S. Ct. at 2190 (acquiring custody of Dr. Alvarez-Machain through abduction).

19931


signed to Guadalajara, Mexico to combat drug trafficking.20 8 In1984, he infiltrated the Guadalajara drug cartel and reached itsleader, Rafael Caro-Quintero. 20 9 On February 7, 1985, drug traf-fickers kidnapped Agent Camarena outside the American consu-late in Guadalajara210 and brought him to a ranch where theytortured him for information regarding DEA activities. 211 Thekidnappers subsequently murdered both Agent Camarena andhis pilot.2 12 One month following the abduction, a passing farmworker found the two bodies outside Guadalajara.21

1

The Camarena investigation, resulting from the murder ofU.S. Drug Enforcement Agent Enrique Camarena, promptedthe United States to utilize extraterritorial apprehension to ap-prehend his killers. 214 The DEA immediately embarked on Op-eration Leyenda to investigate the murder of AgentCamarena.2 5 The United States implicated twenty-two personsin connection with this murder.216 Seven of the twenty-two in-dicted were found within the United States and charged. 21 7 Ofthe seven, three have been brought to the United States by ex-traordinary apprehension. 1 8

3. United States v. Verdugo-Urquidez

The Camarena investigation led to the U.S. prosecution of

208. Abramovsky, Catch and Snatch Policy, supra note 12, at 160.209. Id.210. Caro-Quintero, 745 F. Supp. at 601-02; Ronald J. Ostrow & Marjorie Miller,

Mexico Sends Diplomatic Note to U.S. Asking Details on Suspect's Abduction, L.A. TIMES, Apr.19, 1990, at A6.

211. Abramovsky, Catch and Snatch Policy, supra note 12, at 160.212. Daniel Williams, U.S. and Mexico Plan Talks on Extradition, WASH. PosT, June

22, 1993, at A15; Caro-Quintero, 745 F. Supp. at 602. The pilot, Alfredo Zavala-Avelar,had assisted Agent Camarena in locating marijuana fields. Caro-Quintero, 745 F. Supp.at 602.

213. Id. at 602; Juan M. Vasquez, U.S. Bitterness Lingers in Drug Agent's Killing, L.A.TIMES, Mar. 17, 1985, at 1.

214. See, e.g., United States v. Verdugo-Urquidez, 939 F.2d 1343 (9th Cir. 1991)(acquiring custody of Mr. Verdugo-Urquidez by irregular rendition); United States v.Matta-Ballesteros, 697 F. Supp. 1040 (S.D. Ill. 1988) (acquiring custody of Mr. Matta-Ballesteros by irregular rendition).

215. Caro-Quintero, 745 F. Supp. at 601; Abramovsky, Catch and Snatch Policy, supranote 12, at 161.

216. Caro-Quintero, 745 F. Supp. at 602.217. Id.218. Id. at n.5. The other two brought by extra-legal methods were Mr. Matta-

Ballesteros and Mr. Verdugo-Urquidez. Id.

1993] UNITED STATES v. AL VAREZ-MA CHAIN

Mr. Rene Martin Verdugo-Urquidez.21 9 Because of the similarissues regarding personal jurisdiction and international law prin-ciples, United States v. Verdugo-Urquidez ° is considered the pre-cursor to the Alvarez-Machain case.22' Mr. Verdugo, a leader ofthe Caro-Quintero cartel, participated in the Camarena mur-der.2 2 The United States issued a warrant for his arrest on Au-gust 3, 1985, based on the suspect's prior drug history. 223 Afterseveral unsuccessful attempts to apprehend Mr. Verdugo in theUnited States,224 the U.S. Marshal Service asked the Mexican po-lice for assistance in apprehending Mr. Verdugo. 2 5 On January24, 1986, six Mexican Federal Judicial police officers ("MFJP"),acting under the authority of an arrest warrant, stopped Mr.Verdugo in San Felipe, Mexico. 26 The officers ordered Mr.Verdugo from his car and arrested him.227 Mr. Verdugo wasunaware of the reasons for his arrest or where the abductors in-tended to bring him.228 The officers drove Mr. Verdugo to theU.S.-Mexican border and delivered him to the U.S. Marshals forarrest.229 Neither the United States nor the Mexican authorities

219. United States v. Verdugo-Urquidez, 939 F.2d 1341, 1343 (9th Cir. 1991). Afederal grand jury returned a five-count second superseding indictment on March 16,1988, charging Mr. Verdugo with various offenses including the murder of DEA AgentCamarena. Id. Mr. Verdugo is a Mexican national whom the DEA believed to be adrug smuggler and one of the leaders of a large and violent organization based inMexico. United States v. Verdugo-Urquidez, 856 F.2d 1214, 1215 (9th Cir. 1988), rev'd,110 S. Ct. 1056 (1990).

220. 856 F.2d 1214 (9th Cir. 1988), rev'd, 110 S. Ct. 1056 (1990). Mr. Verdugo alsoraised a Fourth Amendment violation when, after his arrest, Mexican police officialsand U.S. agents searched his home in Mexico. The Supreme Court held the FourthAmendment did not apply to a search by U.S. agents of Mr. Verdugo's home. Verdugo-Urquidez, 110 S. Ct. 1056, 1059-60.

221. Abramovsky, Catch and Snatch Polity, supra note 12, at 163. Mr. Verdugoraised jurisdictional issues based on the method of his acquisition. Id.

222. Id.

223. Verdugo-Urquidez, 856 F.2d at 1215-16.

224. Supreme Court Brief for Respondent Verdugo at n.3 United States v.Verdugo-Urquidez, 856 F.2d 1214 (9th Cir. 1988), rev'd, 110 S. Ct. 1056 (1990) (No. 88-1353) [hereinafter Verdugo Brief]. At the time the United States was seeking Verdugo'sarrest, Verdugo was a legal resident of the United States with Alien Registration. Id.

225. Verdugo, 856 F.2d at 1216.

226. Id.

227. Id. Verdugo was then handcuffed and placed in the officer's unmarked carand forced to lie down on the backseat with his face covered by a jacket. Id.

228. Id. at 1216; Verdugo Brief, supra note 224, at 4, Verdugo-Urquidez (No. 88-1353).

229. Verdugo, 856 F.2d at 1216.


had previously approved the action.23 0 Mr. Verdugo's apprehen-sion amounted to an irregular rendition. 23 1

A jury convicted Mr. Verdugo for various drug related of-fenses and the murder of Agent Camarena.232 On appeal, Mr.Verdugo contested personal jurisdiction due to the method ofhis apprehension.3 3 The U.S. Circuit Court of Appeals for theNinth Circuit held that whenever the U.S. government abductsnon-U.S. nationals, the Ker-Frisbie doctrine does not apply.23 4

Although extradition treaties prohibit government authorized orsponsored kidnapping,23 5 the court stated that an asylum nationmay consent by failing to formally protest.236 The court con-cluded that if a non-U.S. nation objects to the abduction, thedefendant has derivative standing to claim a violation of the ex-tradition'treaty. 237 If such a violation exists, the proper remedyis repatriation.23 8 The court remanded the case for evidentiaryproceedings to determine whether Mexico voluntarily surren-dered the defendant.239

230. Verdugo Brief, supra note 224, at 5, Verdugo-Urquidez (No. 88-1353). Appro-priate authority could have been obtained through the United States Justice Depart-ment and the Mexican Attorney General. Shortly after the kidnapping, the prosecutorof Baja California, Mexico charged the six Mexican Federal Police Officers with kidnap-ping. The United States subsequently placed these six men into the Federal WitnessProtection Program. Id.

231. Caro-Quintero, 745 F. Supp. at 602 n.5; see supra notes 82-97 and accompanyingtext (discussing irregular rendition).

232. United States v. Verdugo-Urquidez, 856 F.2d 1214, 1215 (9th Cir. 1988);Verdugo Brief, supra note 224, at 2, Verdugo-Urquidez (No. 88-1353). He was sentencedto four consecutive 60-year terms of incarceration. Verdugo-Urquidez, 939 F.2d at 1343.

233. Verdugo-Urquidet, 939 F.2d at 1344.234. Id. at 1345-49. The court concluded that:a proper analysis of the cases does not support the contention that the broadview of Ker and its progeny has been adopted by the decision of any court....[T] here is considerably more dictum to the effect that the broad view of Kerdoes not apply to cases in which the government of the nation from which adefendant has been kidnapped protests the kidnapping, and there are strongreasons why the sweeping interpretation of Ker should not be adopted.

Id. at 1348-49; see supra notes 106-32 and accompanying text (discussing Ker-Frisbie doc-trine).

235. Verdugo-Urquidez, 939 F.2d at 1351-52.236. Id. at 1352.237. Id. at 1356-58.238. Id. at 1359-60.239. Id. at 1359. The Circuit Court refused to decide whether there was in fact

government involvement in Verdugo's apprehension. Id. The Supreme Court deniedcertiorari on this matter. United States v. Verdugo-Urquidez, 110 S. Ct. 1839 (1990).


II. UNITED STATES v. ALVAREZ-MACHAIN

The Camarena investigation directly led to U.S. involvementin the abduction of Dr. Alvarez-Machain. 240 The United States,familiar with Mexico's policy, knew Agent Camarena's assailantswould neither be extradited nor prosecuted by Mexico accord-ing to U.S. standards. 41 Moreover the United States had a sover-eign interest to enforce its own laws.2 42 The government and Dr.Alvarez-Machain relied on differing propositions to justify theirrespective positions.2 43 Dr. Alvarez-Machain asserted a violationof the U.S.-Mexico Extradition Treaty due to U.S. governmentinvolvement with his abduction.244 The U.S. government, how-ever, maintained that the U.S.-Mexico Extradition Treaty was notviolated because the abduction occurred outside the operationof the Treaty and therefore the method used to acquire personaljurisdiction over a suspect is irrelevant. 245 The U.S. DistrictCourt and U.S. Court of Appeals for the Ninth Circuit agreedthat the U.S. government unilaterally abducted Dr. Alvarez-Machain and violated the U.S.-Mexico Extradition Treaty.246

A. Factual History of United States v. Alvarez-Machain,

The United States charged Dr. Humberto Alvarez-Machain,a Mexican national, in the sixth superseding indictment impli-

240. Caro-Quintero, 745 F. Supp. at 601 n.1. The sixth superseding indictment.charges [Dr. Alvarez-] Machain with conspiracy to commit violent acts and violent actsin furtherance *of an enterprise engaged in racketeering activity (18 U.S.C. § 1959),conspiracy to kidnap a federal agent (18 U.S.C. §.1201(c)), kidnap of a federal agent(18 U.S.C. § 1201(a) (5)), felony-murder (18 U.S.C. § 1111(a), 1114), and accessory af-ter the fact (18 U.S.C. § 3)." Id.

241. See supra notes 71-77 and accompanying text (describing Mexico's policy onnot extraditing Mexican nationals); Government's Reply Brief, supra note 79, at 5, Alva-rez-Machain (No. 91-712). The United States believed Mexico would be lenient in theprosecution of Camarena's murders. Id.

242. Government's Reply Brief, supra note 79, at 4, Alvarez-Machain (No. 91-712).243. See generally Government's Brief on writ of certiorari to the United States Court

of Appeals for the Ninth Circuit, United States v. Alvarez-Machain, 946 F.2d 1466 (9thCir. 1991) (No. 91-712), reu'd, 112 S. Ct. 2188 (1992); Brief for Respondent on writ ofcertiorari to the United States Court of Appeals for the Ninth Circuit, United States v.Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991) (No. 91-712), rev'd, 112 S. Ct. 2188(1992) [hereinafter Respondent's Brief].

244. Respondent's Brief, supra note 243, at 4-5, Alvarez-Machain (No. 91-712).245. Government's Brief, supra note 71, at 9, Alvarez-Machain (No. 91-712).246. United States v. Caro-Quintero, 745 F. Supp. 601 (C.D. Cal. 1990), United

States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991), rev'd, 112 S. Ct. 2188 (1992).

158 FORDHAM INTERNATIONAL LAWJOURNAL

cating him in the torture and murder of Agent Camarena 47

Dr. Alvarez-Machain, a doctor with a specialty in obstetrics andgynecology, 248 allegedly prolonged Agent Camarena's life andrevived him when unconscious in order to allow the drug traf-fickers to further torture him.249 The United States sought toprosecute Dr. Alvarez-Machain for his involvement in the mur-der.2

50

Prior to abducting Dr. Alvarez-Machain, DEA agents at-tempted to obtain him through an irregular rendition.2 5' MFJPcommandante Jorge Castillo del Rey approached DEA inform-ant Garate, who served as the liaison between the MFJP and theDEA. 52 Negotiations between the U.S. DEA and the MFJP fol-lowed regarding the possible exchange of Dr. Alvarez-Machainfor Isaac Naredo Moreno, 53 a Mexican national residing in theUnited States and sought by Mexico's Attorney General for steal-ing money from Mexican politicians. 54 On December 13, 1989,DEA Agent Berrellez and DEA Special Agent Waters met in LosAngeles with MFJP commandante Jorge Castillo del Rey and anunidentified MFJP commandante.255 The parties made arrange-ments that would lead to Dr. Alvarez-Machain's return to theUnited States. 256 In return for Dr. Alvarez-Machain, the UnitedStates would begin deportation proceedings against Mr.Moreno.257 The parties scheduled this rendition to take placesecretly after Christmas.25 1 On January 7,1990, however, compli-cations arose when DEA informant Garate advised the DEA that

247. Caro-Quintero, 745 F. Supp. at 601 n.1; see supra note 240 (setting forth chargesin sixth superseding indictment).

248. Caro-Quintero, 745 F. Supp. at 602.249. Government's Brief, supra note 71, at 2, Alvarez-Machain (No. 91-712). Dr.

Machain was "to prolong Camarena's life so that others could continue interrogatingand torturing him." Id. The drug allegedly used was lidocaine. Judge Acquits MexicanDoctor in Murder of U.S. Drug Agent, ST. PETERSBURG TIMES, Dec. 15, 1992, at IA.

250. Alvarez-Machain, 112 S. Ct. at 2190.251. Caro-Quintero, 745 F. Supp. at 602.252. Id. "Antonio Garate-Bustamante, a DEA informant who had served as an in-

termediary between the Mexican government and the DEA." Government's Brief, supranote 71, at 3, Alvarez-Machain (No. 91-712).

253. Caro-Quintero, 745 F. Supp. at 602.254. Id.255. Id.256. Id. Receipt of Dr. Alvarez-Machain was to occur through irregular rendition.

Id.257. Id.258. Id.

[Vol. 17:126

UNITED STATES v. AL VARE-MACHAIN

the Mexican officials demanded a U.S. $50,000 advance paymentto transport Dr. Alvarez-Machain to the United States.25 9 TheDEA refused and the agreement was terminated.26 °

On January 25, 1990 Commandante Castillo contacted DEAinformant Garate to schedule a second meeting.261 Agent Ber-rellez initially agreed to the meeting, but later reconsidered.262

No further negotiations occurred between the DEA and MJFP,thus terminating any possibility that the United States wouldgain custody of Dr. Alvarez-Machain through an irregular rendi-tion.2 6 3

The failed negotiation left the DEA with limited possibili-ties. 26 The DEA disfavored utilizing the extradition treaty toseek Dr. Alvarez-Machain's return because Mexico proved inef-fective in complying with previous U.S. requests26 5 for individu-als such as Mr. Caro-Quintero 66 and Mr. Matta-Ballesteros. 267

Both Mr. Caro-Quintero and Mr. Matta-Ballesteros had eludedcustody by bribing Mexican officials. 68 In addition, Mexico'slaws prohibited extradition of its nationals. 269 Agent Berrelleztold DEA informant Garate that the DEA would pay for informa-tion leading to the arrest and capture of individuals involved inthe murder of Agent CamarenaY In March of 1990, Mr.Garate informed Agent Berrellez that his contacts could appre-hend Dr. Alvarez-Machain and deliver him to the United

259. Id.260. Id.261. Id.262. Id. at 602-03. Agent Berrellez's reconsideration was due to the ten~ion be-

tween Mexico and the United States created by the airing of the NBC mini-series docu-menting the Camarena murder and'investigation. "Drug Wars: The Camarena Story"aired on NBC on January 7, 8, and 9, 1990. Agent Berrellez also testified that he can-celed because he believed the meeting was a 'set up'. Id. at 603.

263. Id. at 603.264. Government's Reply Brief, supra note 79 at 5, Alvare-Machain (No. 91-712).

"[T] he United States' interest in enforcing its own criminal laws is manifest." Id.265. Abramovsky, Catch and Snatch Policy, supra note 12, at 161.266. Ronald Ostrow, U.S. Charges Mexico Let Suspect Fle, L.A. TIMES, Feb. 25, 1985,

at 1. Mr. Caro-Quintero was reputed to be part of a drug cartel and involved in theabduction and murder of Agent Camarena. Id.

267. Henry Weinstein, Matta Convicted on Three of Four Counts in Camarena Case,L.A. TIMES, July 27, 1990, at 1. Mr. Matta-Ballesteros was an Honduran businessmanand a reputed drug kingpin involved in the kidnapping and murder of AgentCamarena. Id.

268. See Abramovsky, Catch and Snatch Policy, supra note 12, at 169 n.94.269. Id. at 161 n.42.270. Caro-Quintero, 745 F. Supp. at 602-03.

1993]

160 •FORDHAMINTERNATIONALLAWJOURNAL [Vol. 17:126

States' After receiving this information, Agent Berrellez ob-tained authorization to offer a U.S.$50,000 reward if Mr.Garate's contacts could deliver Dr. Alvarez-Machain to theUnited States. 272 In March, Agent Berrellez and Mr. Garatemade arrangements to apprehend Dr. Alvarez-Machain.2 7

Agent Berrellez, who gained approval from the DEA in Washing-ton and therefore assumed the U.S. Attorney General's Officewas consulted before the abduction, began to execute theplanned apprehension.2 7 4

On April. 2, 1990, Dr. Alvarez-Machain was kidnapped fromhis office in Guadalajara, Mexico.275 Five or six armed men en-tered Dr. Alvarez-Machain's office and, showed him what ap-peared to be a badge of the Mexican Federal Police. 76 Themen took Dr. Alvarez-Machain to a house' in Guadalajara andforced him to lie face down for two to three hours. 77 Dr. Alva-rez-Machain's abductors subjected him to electric shocks admin-istered through the soles of his shoes and injected him with asedative.2 78 Following this treatment, the men placed Dr. Alva-rez-Machain aboard a plane which flew to El Paso, Texas whereseveral persons, including Agent Berrellez and Mr. Garate, met'the doctor.2 7 9 Dr. Alvarez-Machain was asked if his abductorshad tortured or abused him.280 He said he had not experiencedany abusive treatment. 281 He later stated, however, that he suf-

271. Id.; see supra notes 98-105 and accompanying text (discussing abduction asmethod of apprehension).

272. Caro-Quintero, 745 F. Supp. at 603. Agent Berrellez testified he received au-thorization to make this offer from the Los Angeles DEA Office, the Deputy Director ofthe DEA, Pete Gruden and other officials in Washington, D.C.. Id.

273. Id. "Garate testified that he did not make a move without first consulting withand obtaining authorization from agent Berrellez." Id. at n.7.

274. Id. at 603. "Berrellez testified that the abduction and the final terms of theabduction had been approved by the DEA in Washington, D.C., and agent Berrellezbelieved that the United States Attorney General's Office had also been consulted." Id.

275. Id. at 603.276. Id.277. Id.278. Id. "He was injected twice with a substance that made him feel 'light-headed

and dizzy.'" Id.279. Id. Agent Berrellez testified he did not know if the abductors were acting

under Mexican authority. Id. at n.8. The DEA made partial reward payment of U.S.$20,000 to the abductors and continued to give them U.S. $6,000 per week. Id. at 603-04. In addition, the United States arranged for the seven of the abductors and theirfamilies to come to the United States. Id.

280. Id. at 604.281. Id. The court reported that Dr. Machain stated that

UNITED STATES v. AL VARE7-MA CHAIN

fered from chest pains.28 2 He underwent a physical examina-tion, and the examining doctor concluded that Dr. Alvarez-Machain exhibited no signs of mistreatment or abuse.283

On April 18, 1990, the Mexican Embassy requested a de-tailed report from the U.S. Department of State regarding thepossibility of U.S. participation in the abduction of Dr. Alvarez-Machain.2 ' The request included a warning that cooperationbetween the nations in the fight against drug trafficking wouldbe endangered if the United States had participated in the ab-duction.2 11 On May 16, 1990, the Mexican Embassy sent a sec-ond diplomatic note alleging U.S. participation in the abductionof Dr. Alvarez-Machain. 2 6 'Mexico demanded Dr. Alvarez-Machain's repatriation and stressed that Dr. Alvarez-Machain'sabduction violated the U.S.-Mexico Extradition Treaty.2 s7 OnJuly 19, 1990, the Mexican Embassy presented a third diplomaticnote requesting the arrest and extradition of Agent Berrellezand Mr. Garate for crimes relating to Dr. Alvarez-Machain's ab-duction.28 8

A. The U.S. Government's Argument in Support of the Abduction ofDr. Alvarez-Machain

In its brief to the U.S. Supreme Court, the United Statesmaintained that jurisdiction was proper because the apprehen-sion of Dr. Alvarez-Machain did not occur through the operationof the U.S.-Mexico Extradition Treaty and did not violate its pro-

he had not (been mistreated or abused], though he complained that he hadinjured his finger on the door of the aircraft .... Dr. Machain was subse-quently treated by various... medical personnel during his incarceration. Atno time did he indicate... that he had been mistreated by his kidnappers.

Id.

282. Id. Dr. Alvarez-Machain reported "a pain radiating from his chest and pres-sure in his chest." Id.

283. Id. Prompt medical treatment was provided at Thomason General Hospitalby Dr. Mesa, who discovered no signs of abuse and prescribed a pain killer. Id.

284. Id. "The Mexican government indicated that it was making 'a scrupulousinvestigation [of] this case.'" Id.

285. Id. "'[If it is proven that these actions were performed with the illegal partici-pation of the U.S. authorities, the binational cooperation in the fight against drug traf-ficking will be endangered. . . .'" Id.

286. Id. "The note stated that '[t]he Government of Mexico considers that thekidnapping of Dr. Alvarez-Machain... [was] carried out with the knowledge of personsworking for the U.S. government. .. .'" Id.

287. Id.288. Id.

1993]


visions.2 19 Moreover, the government contended that the Mexi-

can protests did not serve to invoke the U.S.-Mexico ExtraditionTreaty.2 90 Having-not invoked the extradition treaty in force be-tween the two nations, the U.S. government viewed Mexico'sprotests, and the issue of whether the abduction was privately orgovernment sponsored to be irrelevant. 91

The U.S. government implicated the Ker-Frisbie doctrine tosupport its argument.2 92 The government maintained that Ker-Frisbie applied in renditions operating outside of a treaty.293 Ac-cording to the U.S. government, an exception to the rule oc-curred if the applicable treaty or statute specifically barred ab-duction and provided for termination of the prosecution as aremedy.294 The United States asserted that this case did not fallwithin the exception because the U.S.-Mexico Extradition Treatydid not set forth an express prohibition barring abduction as amethod of obtaining custody.2 9 5 Moreover, the United Statescited United States v. Rausche"29 6 to illustrate the exception to theKer-Frisbie doctrine. 97

The government emphasized that Rauscher involved formalextradition proceedings decided on the specific terms of theWebster-Ashburton Treaty.2 98 The government maintained thatRauscher did not support the proposition that a court may rely

289. Government's Brief, supra note 71, at 9, Alvarez-Machain (No. 91-712).290. Id. at 15.291. Id. According to the U.S. government "the Ker Frisbie] doctrine applies re-

gardless of whether the abduction is attributable to government officials or private par-ties." Id.

292. Id. at 17. The U.S. government maintained that "(t] he Ker-Frisbie doctrine andits rationale are fully applicable in this case." Id.

293. Id. The U.S. government alleged that "the Ker-Frisbie rule applies to arreststhat violate the Constitution; regardless of the unlawfulness of the defendant's appre-hension. . . ." Id. at 16.

294. Id. at 17. Exceptions to the Ker-Frisbie doctrine were asserted as "only whenthe Court has found both a clear violation of a treaty or statute and a clear intention inthe treaty or statute to provide for termination of the prosecution as a remedy." Id.(emphasis added).

295. Id. at 19 n.14. In examining the U.S.-Mexico Extradition Treaty, the U.S.government found that "[tihere is no language in our extradition treaty with Mexicothat supports extension of the treaty's obligations to non-extradition settings." Id.

296. United States v. Rauscher, 119 U.S. 407 (1886). See supra notes 163-76 andaccompanying text (discussing Rauscher).

297. See supra notes 163-76 and accompanying text (discussing Rauscher).298. Government's Brief, supra note 71, at 17-18, Alvarez-Machain (No. 91-712).

"Unlike Ker, Rauscher involved formal extradition proceedings." Id. See supra note 167-68 and accompanying text (discussing the Webster-Ashburton Treaty).

1993] UNITED STATES v. ALVAREZMACHAIN 163

on the treaty to refuse jurisdiction when a nation obtained a de-fendant by methods other than extradition.2

' The governmentconcluded that since the United States did not invoke the U.S.-Mexico Extradition Treaty to utilize the extradition process, Dr.Alvarez-Machain was not extradited under the treaty and was notentitled to any proceeding which the Treaty would have affordedhim.

300

The government asserted that not only did the UnitedStates not violate an express term of the extradition treaty, but itdid not even violate an implied term of the U.S.-Mexico Extradi-tion Treaty.30 1 The government maintained that an extraditiontreaty addresses a narrow scope solely to impose obligations re-garding the extradition process °30 2 The United States and Mex-ico negotiated the treaty with this purpose in mind, without anyintent to regulate forcible abductions.0 In particular, theUnited States emphasized that the text and purpose of the U.S.-Mexico Extradition Treaty did not preclude forcible abduc-tions.304 The purpose of extradition treaties, according to thegovernment, was to facilitate the rendition of fugitives.30 5 More-over, the government drew attention to other nations that by-passed treaty provisions and resorted to alternate means to

299. Government's Brief, supra note 71, at 18, Alvarez-Machain (No. 91-712)."Nothing in Rauscher supports the conclusion that if the defendant's presence was ob-tained by means other than extradition, a court may invoke the treaty to refuse to trythe defendant at all." Id. at 18-19.

300. Id. at 19.301. Id. at 21. "[T] he extradition treaty does not address the subject of apprehen-

sions made outside the extradition context, and the treaty cannot be construed to im-pose an obligation to refrain from such apprehensions." Id.

302. Id.; see supra notes 28-43 and accompanying text (discussing extradition trea-ties in general).

303. Government's Brief, supra note 71, at 22, Alvarez-Machain (No. 91-712). TheU.S. government cited the.U.S.-Mexico Extradition Treaty and maintained that "[t]hetreaty preamble states that the United States and Mexico entered the treaty out of adesire 'to mutually render better assistance in matters of extradition' . . . [t]hat statedpurpose - to aid the extradition process - defines and limits the scope of the treaty."Government's Reply Brief, supra note 79, at 2, Alvarez-Machain (No. 91-712) (emphasisin original).

304. Government's Brief, supra note 71, at 23, Alvarez-Machain (No. 91-712). Cit-ing the omission of certain terms from the U.S.-Mexico Extradition Treaty, the U.S.government stated that "[there is no provision in our extradition treaty with Mexicothat forbids the signatory nations from making extraterritorial arrests outside the con-text of extradition proceedings." Id.

305. Id. at 24-25.


render individuals.3 0 6 More specifically, both the United Statesand Mexico have operated outside the scope of an extraditiontreaty on various other occasions.3 °7 As early as 1906, the UnitedStates and Mexico indicated that the U.S.-Mexico ExtraditionTreaty did not bar abductions."' 8 Furthermore, the governmentmaintained that customary international law did not support theinterpretation that the U.S.-Mexico Extradition Treaty pre-cluded resort to extraterritorial abductions.0 9

The U.S. government asserted that even if the treaty con-tained an implied obligation that the United States violated, anindividual would have no standing to raise an objection. 310 Ex-tradition treaties, according to the government, could only betriggered by the nations that were a party to, them.3 1' Mexico'sprotests therefore could not create standing in an individual. 3 2

Such a right could not be implied.3 13 Thus, Dr. Alvarez-Machainlacked the right to speak on behalf of Mexico or act as a surro-gate. 14 Mexico could proceed only through diplomatic chan-nels.31 5

The United States further argued that to recognize a treatyviolation would interfere with executive branch authority overinternational matters. 31 6 The court's role is to apply and inter-

306. Government's Reply Brief, supra note 79, at 7, Alvarez-Machain (No. 91-712).307. Government's Brief, supra note 71, at 27-28, Alvarez-Machain (No. 91-712).

"The history of negotiation and practice under the Treaty also fails to show that abduc-tions outside of the Treaty constitute a violation of the Treaty." Alvarez-Machain, 112 S.Ct. at 2194.

308. Government's Brief, supra note 71, at 28, Alvare-Machain (No. 91-712). In1906, the United States informed Mexico that forcible abduction was not grounds forthe defendant to avoid criminal trial. Id.

309. Id. at 32. "Far from supporting the court's analysis, those sources of interna-tional law confirm that the extradition treaty beiween the United States and Mexicodoes not address the issue of extraterritorial arrest." Id.

310. Id. at 34. "This court holds that its [sic] is for the state, and not the individual,to initially protest and thereby raise a claim that the method of securing a person'spresence violates an extradition treaty." Caro-Quintero, 745 F. Supp. at 608.

311. Government's Brief, supra note 71, at 34, Alvarez-Machain (No. 91-712).312. Id. at 35-36. The U.S. government felt that "Mexico's protest, however, [was]

irrelevant to the issue of respondent's standing." Id.313. Id. at 35.314. Id. at 36. According to the United States, "[r]espondent is not empowered to

speak on Mexico's behalf and is hardly a surrogate for that nation. Whatever rightsMexico has under the treaty cannot be delegated to a criminal defendant seeking toavoid trial in this country." Id.

315. Id.316. Id. at 38. The U.S. government stated that "[t]he adjudication of claims chal-

[Vol. 17:126

1993] UNITED STATES v. ALVAREZ-MACHAIN

pret the treaty, not create provisions or remedies."1 7 The execu-tive branch is to remedy treaty flaws and balance diplomatic rela-tions.31 8 Therefore, the government reasoned, the Court shouldnot find a private right in the U.S.-Mexico Extradition Treatyand determine the remedy to be repatriation.319 Allowing thecourts to decide diplomatic issues would violate the treaty pro-cess.

3 20

B. Dr. Alvarez-Machain's Argument

Dr. Alvarez-Machain asserted a violation of the U.S.-MexicoExtradition Treaty. 21 To support his argument, he relied on Ar-ticle 9, paragraph 2, of the U.S.-Mexico Extradition Treatywhich permits each party to prosecute its own nationals.322 Dr.Alvarez-Machain asserted that this provision reflected an agree-ment to protect the rights of both countries and thus prohibitprosecution of each country's nationals in another nation.323

Dr. Alvarez-Machain therefore maintained that the U.S.'s deci-sion to ignore the U.S.-Mexico Extradition Treaty and abducthim undermined the intent of Article 9.324 Dr. Alvarez-Machainfurther argued that the U.S.-Mexico Extradition Treaty shouldbe viewed as a vehicle to enhance mutual cooperation and as-sure preservation of each nation's sovereignty.325

lenging foreign arrests would frequently encroach on functions belonging exclusively tothe political branches." Id.; see supra note 61 (discussing the three branches of power).

317. Government Brief, supra 'note 71, at 39, Alvarez-Machamin (No. 91-712). TheUnited States refuted the remedy of repatriation by arguing that "the remedy of repatri-ation devised by the court of appeals... is inconsistent with the generally limited func-tion of the Article III branch in the realm of foreign relations." Id. (citing Haig v. Agee,453 U.S. 280, 292 (1981)).

318. Id. at 39-40. The United States acknowledged that "the administration of ex-tradition treaties is interwoven with the Executive's authority...." Id,

319. Id. at 34.320. Id. at 38.321. Respondent's Brief, supra note 243, at 3, Alvarez-Machain (No. 91-712);

Treaty, supra note 7, 31 U.S.T. 5059, T.I.A.S. No. 9656.322. Respondent's Brief, supra note 243, at 9, Alvarez-Machain (No. 91-712);

Treaty, supra note 7, art. 9, 31 U.S.T. at 5065, T.I.A.S. No. 9656 at 7.323. Respondent's Brief, supra note 243, at 9, Alvarez-Macain (No. 91-712).324. Id. at 11. "[T ] he government completely undermines the basic purpose of the

Treaty by unilaterally altering the terms of its agreement with Mexico." Id.; see alsoTreaty, supra note 7, art. 9, 31 U.S.T. at 5065, T.I.A.S. No. 9656 at 7.

325. Respondent's Brief, supra note 243, at Il Alvarez-Machain (No. 91-712). Dr.Alvarez-Machain asserted that "it is precisely because abduction of criminal suspectsfrom another country is so clearly prohibited in international law, and because there is


Dr. Alvarez-Machain relied on the history of relations be-tween the United States and Mexico to bolster his argument.3 26

Historically, neither the United States nor Mexico depended onabductions to obtain jurisdiction over a non-national.127 Dr. Al-varez-Machain argued that in 1881 and 1887, the U.S. Secretaryof State acknowledged that transborder abductions violated theextradition treaty.328 Never before had the United States orMexico taken the position that it had the right to abduct.32 9

Moreover, Dr. Alvarez-Machain noted that customary inter-national law principles also supported the doctors' interpreta-tion of the U.S.-Mexico Extradition Treaty.33 ° Since it is a viola-tion of international law for one state to exercise its police powerin another state's territory, his capture violated the U.S.-MexicoExtradition Treaty.331 Further, the executive branch of the U.S.in the past had always viewed abductions by government agentsas violations of customary international law. 3

Dr. Alvarez-Machain also distinguished the difference be-tween the principles set forth in Ker v. Illinois and United States v.Rauscher and maintained that the U.S.-Mexico Extradition Treatyhad to be interpreted within the Rauscher holding.3 3 Thesecases, according to Dr. Alvarez-Machain, formed two distinct cat-egories.33 4 Pursuant to Ker, Peru did not protest the kidnappingand thus the abduction occurred without the pretense of author-ity.33

1 In the absence of a protest by the sovereign, Mr. Ker's

no international duty to extradite absent a treaty, that extradition treaties are neces-sary." Id.

326. Id. at 13. "The United States and Mexico have entered into a series of extra-dition treaties dating back to 1862." Id.

327. Id. at 14.328. Id.329. Id. at 15.330. Id. at 16.331. Id. Respondent writes that "it is a violation of international law for one gov-

ernment to exercise its police power in the territory of another state." Id.332. Id. at 19. "The former Legal Advisor to the Department of State expressly

testified that. . . 'the United States has repeatedly associated itself with the view thatunconsented arrests violate the principle of territorial integrity.'" Id.

333. Id. at 28; see supra notes 163-76 and accompanying text (discussing Rauscher).334. Respondent's Brief, supra note 243, at 29, Alvarez-Machain (No. 91-712). This

is in contrast to the government's portrayal of Rauscher as merely an exception to Ker.Id. Dr. Alvarez-Machain asserted that "each one applies in a distinctive setting...." Id.at 28.

335. Id. at 29. "Peru had the right to consent, explicitly or silently, to the kidnap-ping of Ker from its territory - a right Peru exercised by silence in that case." Id.

[Vol. 17:126


apprehension became a consensual informal rendition and didnot violate any treaty."3 6 In contrast, Rauscher involved a viola-tion of a treaty's implied provisions because Mr. Rauscher wasextradited to the United States for one crime within the scope ofthe treaty, but was prosecuted for another offense.1 7

Dr. Alvarez-Machain identified what he felt were the ele-ments that amounted to a treaty violation. 338 Relying on priorcase law,33 9 the doctor argued that a court has no authority toexercise jurisdiction over an alleged offender if (1) one state ab-ducts a national of another and (2) the latter protests. 340 Therespondent also rejected the applicability of the Ker-Frisbie doc-trine, 41 alleging that the cases relying on Ker contained one ormore of the following elements: (1) no official protest by thegovernment of the country from which the suspect was ab-ducted; (2) direct involvement or consent of the non-U.S. gov-ernment in the rendition of individuals to the United States; or(3) no involvement of the United States in the abduction.342 Dr.Alvarez-Machain claimed that these elements did not exist in thepresent case. 43

Dr. Alvarez-Machain alleged that the U.S.-Mexico Extradi-tion Treaty was self-executing, thereby granting him standing toprotest.344 Historically, U.S. courts have recognized treaties tobe self-executing. 345 According to Dr. Alvarez-Machain, not

336. Id. at 28. "That the abduction did not violate the extradition treaty is evi-denced first by the absence of any U.S. involvement in the kidnapping, and second bythe absence of any protest by Peru." Id. at 28.

337. Id. at 23; see supra notes 170-76 and accompanying text (discussing the doc-trine of specialty).

338. Respondent's Brief, supra note 243, at 29, Alvarez-Machain (No. 91-712).339. Ford v. United States, 273 U.S. 593, 605-06 (1977) (finding Ker inapplicable

to a claimed violation of the U.S.-Britain treaty to prevent smuggling of intoxicatingliquors into United States).

340. Respondent's Brief, supra note 243, at 29, Alvarez-Machain (No. 91-712).341. Id. "But the Ker case does not apply here .... Here a treaty of the United

States is directly involved, and the question is quite different." Id.342. Id. at 30.343. Id.344. Id. at 35. "If this [self-executing] standard has been met, an individual tried in

violation of this particular provision by definition has standing to raise the issue." Id.345. Id. at 37. "[T]he court has long recognized extradition treaties as prototypical

examples of self-executing treaties. . . ." Id. Extradition treaties are considered self-executing, enforceable without implementing legislation, as opposed to executory trea-ties which are not enforceable until Congress enacts implementing legislation. HeadMoney Cases, 112 U.S. 580, 598-99 (1884).

1993]


only did an extradition treaty seek to promote law enforcementand preserve sovereignty, but Article 9 of the U.S.-Mexico Extra-dition Treaty also evidenced the intent to protect individualrights.3 46 To support this proposition, Dr. Alvarez-Machain citedRauscher,3 47 where the Supreme Court held the treaty at issue tobe self-executing and recognized the right of the accused.3 48

Moreover, the Court in Rauscher implied an obligation to try anindividual only for an extradited offense. 349 By analogy, the doc-tor argued, if a court would not allow Mr. Rauscher's prosecu-tion, the Court Would also forbid the prosecution of an abductedindividual.35 0 Dr. Alvarez-Machain felt this, coupled with Mex-ico's protest, granted him standing to assert a treaty violation.35'According to international law and U.S. practice, Dr. Alvarez-Machain asserted repatriation to be the. appropriate remedy.352

C. The Decision of the United States District Court

Dr. Alvarez-Machain filed a motion to dismiss his indict-ment due to outrageous government conduct and lack of per-sonal jurisdiction.3 1

3 Dr. Alvarez-Machain presented four theo-ries to Judge Rafeedie, presiding judge of the U.S. District Court

346. Respondent's Brief, supra note 243, at 39, Alvarez-Machain (No. 91-712). Dr.Alvarez-Machain argued that "[t ] he prohibition against unconsented to abductions, ex-pressed both in Article 9 and the whole structure of the Treaty, evidences a clear intentto confer benefits upon individuals. It is, therefore, self-executing." Id.

347. United States v. Rauscher, 119 U.S. 407 (1886); see supra notes 163-76 andaccompanying text (discussing Rauscher).

348. Id.; Respondent's Brief, supra note 243, at 40, Alvarez-Machain (No. 91-712).Dr. Alvarez-Machain asserted that "Rauscher unequivocally established that an individualdefendant can raise a violation of an extradition treaty in criminal proceedings, evenwhen the particular term at issue is implicit." Respondent's Brief, supra note 243, at 40,Alvarez-Machain (No. 91-712) (emphasis in original).

349. Rauscher, 119 U.S. at 430.350. Respondent's Brief, supra note 243, at 35, Alvarez-Machain (No. 91-712). Ac-

cording to the doctor, the situation in Rauscher and this case were analogous in that"[t] here is no valid reason for making a distinction between the implicit obligation notto try one who has been forcibly abducted by government agents in circumvention of atreaty and the implicit obligation not to try a person for unspecified offenses, held to bejudicially enforceable in Rauscher." Id.

351. Id. at 41. "While Respondent has standing to raise the Treaty violation defen-sively because the prohibition against unilateral abduction is self-executing, the protestby Mexico serves an important evidentiary function in making it perfectly clear thatRespondent has not been the subject of a consensual informal rendition." Id.

352. Id at 43.353. Caro-Quintero, 745 F. Supp. at 601.

1993] UNITED STATES v. ALVAREZ-MACHAIN

for the Central District of California. 5 4 First, Dr. Alvarez-Machain asserted that the United States deprived him of hisFifth Amendment due process rights.3 55 Second, he claimedthat the United States obtained his presence in violation of theU.S.-Mexico Extradition Treaty.35 6 Third, Dr. Alvarez-Machainalleged that his presence was obtained in violation of both theCharters of the United Nations and the Organization of theAmerican States.357 Finally, Dr. Alvarez-Machain urged the courtto use its supervisory power to dismiss the indictment.358

The District Court considered Dr. Alvarez-Machain's allega-tions and rejected his due process claim.359 The court did, how-ever, consider divestment based on the exception to the Ker-Fris-bie doctrine set forth in United States v. Toscanino.360 The courtfound that Dr. Alvarez-Machain's alleged mistreatment did notsatisfy the Toscanino standard.3 6 1 Dr. Alvarez-Machain's chestpains, experienced upon arrival to the United States, did not riseto the level of abuse.3 62 Furthermore, Dr. Alvarez-Machain didnot inform the examining physician of any mistreatment.363 Thecourt found it incredible that a doctor trained in trauma care, aswas Dr. Alvarez-Machain, would not disclose acts of abuse to thetreating physician." 4

354. Id. at 599-601.355. Id. at 601.356. Id.357. Id.358. Id.359. Id. at 606.360. Id.; United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974); see supra notes

133-62 and accompanying text (discussing Toscanino exception).361. Caro-Qyintero, 745 F. Supp. at 606. "Dr. Machain's allegations of mistreat-

ment, even if taken as true, do not constitute acts of such barbarism as to warrant dis-missal of the indictment under the case law." Id. at 605. "Defendant has failed todemonstrate that his case fits within the narrow exception to the Ker-Frisbie doctrine."Id. at 606.

362. Id. at 605.363. Id.; supra notes 280-81 and accompanying text (documenting Dr. Alvarez-

Machain's denial of mistreatment).364. Caro-Quintero, 745 F. Supp. at 605-06. The court stated thatDr. Machain's allegations of mistreatment are not worthy of belief. Dr.Machain, a medical doctor trained in trauma care, testified that shortly afterhis arrival in the United States he developed chest pains. Yet when he soughtrelief from various examining medical personnel, he failed to relate to themthat he had been repeatedly shocked with an electrical apparatus the daybefore these pains developed. Surely Dr. Machain would have relayed thisinformation to his treating physicians- had he actually been repeatedly


The court also considered whether Dr. Alvarez-Machain'sabduction violated the U.S.-Mexico Extradition Treaty.365 As apreliminary matter, the court noted the inapplicability of theKer-Frisbie doctrine in cases of treaty law and therefore did notconsider it in this case. 66 The court then determined the U.S.-Mexico Extradition Treaty to be self-executing, thus subjectingthe treaty to enforcement in federal court.367

In examining whether a treaty violation existed, the courtturned its attention to the role of the United States in the abduc-tion of Dr. Alvarez-Machain. 368 The court stated that the DEA,acting as agents of the United States, and with the apparent au-thority of the Attorney General's office, offered to pay a rewardfor the abduction of Dr. Alvarez-Machain and agreed to reim-burse the abductors for their expenses.369 The court thus foundthat the United States had engaged in a unilateral abduction,without the cooperation of the Mexican government.37 ° This

shocked. Under these circumstances, Dr. Machain's recent allegations ofabuse are simply not credible.

Id.365. Id. at 614.366. Id. at 606. "The [Ker-Frisbie] doctrine has no application to violations of fed-

eral treaty law." Id.367. Id. at 606. "A self-executing treaty is federal law which must be enforced in

federal court unless superseded by other federal law." Id. Assured of its enforcementpower, the court examined whether Dr. Alvarez-Machain had standing to claim a viola-tion of the treaty. Id. The sovereign in a self-executing treaty has the right to raise aclaim that the method of apprehension violates the procedure of an extradition treaty.The court, basing its judgment on the diplomatic notes that the Mexican governmentaddressed to the State Department, found that Mexico had adequately protested Dr.Alvarez-Machain's abduction, thus creating derivative standing for Dr. Alvarez-Machainto raise such a claim. Id. at 606-07.

368. Id. at 609.369. Id. The court determined that[t]he record reveal[ed] that the DEA and its informants were integrally in-volved in Dr. Machain's abduction. Prior to the kidnapping, the DEA inducedthe abuductors with the offer to pay a $50,000 reward for the successful abduc-tion of Dr. Machain and promised to reimburse these individuals for theirexpenses.... Upon completion of the abduction, the DEA paid a $20,000reward to the abductors and their families. In addition, many of the abductorsand their families have been relocated to the United States. The United Statespays approximately $6,000 per week in living expenses for the relocated ab-ductors.

Id. Weekly payments to the abductors began on April 8, 1990, six days following Dr.Alvarez-Machain's abduction. Henry Weinstein, Witness Tells of Kidnaping Payout, L.A.TIMES, May 26, 1990, at 26. DEA spokesman, Frank Shults, characterized the U.S.$20,000 as payment for services to cover expenses and not a reward. Id.

370. Caro-Quintero, 745 F. Supp. at 612. The court noted that

1993] UNITED STATES v. ALVARE-MAC-AIN

conduct, according to the court, constituted a treaty violation."' 1

In order to remedy the treaty violation, the court deferredto international law principles. 2 Under international law, astate violating an international obligation must terminate the vi-olation and make reparation to the offended state. 73 Accord-ingly, the court determined that Dr. Alvarez-Machain's repatria-tion was a proper remedy. 74

D. The Decision of the U.S. Circuit Court of Appeals

The U.S. Circuit Court of Appeals for the Ninth Circuit af-firmed the District Court's decision.3 75 The Ninth Circuit, rely-ing on its previous determinations in United States v. Verdugo-Ur-

[i]n the present case, there has been no joint effort by the United States andMexico. The record reveals no participation in the abduction by the Mexicangovernment. Rather, the record reveals that earlier negotiations between theUnited States and known representatives of Mexico for an exchange of fugi-tives had broken 'down. When Mexico attempted to revive those negotiations,the United States refused. The United States then unilaterally proceeded withthe abduction without the knowledge or participation of the Mexican govern-ment.

Id. Prior to this finding, the United States denied allegations of participation by U.S.agents. RonaldJ. Ostrow and Marjorie Miller, Mexico Sends Diplomatic Note to U.S. AskingDetails on Suspect's Abduction, L.A. TIMES, Apr. 19, 1990, at 6. Furthermore, according toMexican officials, U.S. officials contended that the arrest was the result of a renegadeoperation from the L.A. DEA Office acting without authority from Washington.Marjorie Miller and RonaldJ. Ostrow, Mexico Threatens to Halt U.S. Anti-Drug CooperationOver Abduction of Suspect, L.A. TIMEs, Apr. 19, 1990, at 6.

371. Caro-Quintero, 745 F. Supp. at 614. "[T] he United States has violated the extra-dition treaty between the United States and Mexico." Id.

372. Id.

373. Id. "'The reparation must, as far as possible, wipe out all the consequences ofthe illegal act and reestablish the situation which would, in all probability, have existedif that act had not been committed.'" Id. Ordinarily emphasis is placed on forms ofredress that will "undo the effect of the violation, such as restoration of the status quoante, restitution or specific performance of the undertaking." RESTATEMENT (THIRD) OF

THE FOREIGN RELATIONS LAw OF THE UNrrED STATES § 901 (1987); see supra note 9 (not-ing repatriation as remedy for abduction).

374. Caro-Quintero, 745 F. Supp. at 614. The court, citing Toscanino and Rauscher,recognized "a long standing principle of international law that abductions by one stateof persons located within the territory of another violate the territorial sovereignty ofthe second state and are redressable usually by the return of the person kidnapped."Id. The court in Caro-Quintero determined "[t]he remedy in the present case is the im-mediate return of Dr. Machaln to the territory of Mexico." Caro-Quintero, 745 F. Supp.at 614.

375. United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991).

172 FORDHAMITTERNATIONALLAWJOURNAL [Vol. 17:126

quidez, 76 stated that the forcible abduction of a Mexican na-tional from Mexico by U.S. agents without the consent oracquiescence of the Mexican government violated the U.S.-Mex-ico Extradition Treaty. 77 According to the Verdugo court, a for-mal protest by the sovereign state would create standing for anational to allege a violation of the treaty.378 When a treaty viola-tion occurs, the remedy is repatriation. 79

Relying on the findings of fact by the District Court, theCourt of Appeals found a treaty violation.38 0 The Court of Ap-peals therefore determined that a Treaty violation had occurred,and that Dr. Alvarez-Machain had standing to assert his rightsunder the treaty.38 ' Consequently, the Ninth Circuit agreed withthe District Court that the proper remedy was repatriation.8 2

E. The Supreme Court's Holding

In a six to three decision, the U.S. Supreme Court reversedthe lower courts and sanctioned the abduction of Dr. Alvarez-Machain. 3 The majority opinion, delivered by Chief JusticeWilliam H. Rehnquist,38 4 justified the U.S. government's actionsand relied on both the Ker-Frisbie doctrine and the U.S.-MexicoExtradition Treaty.38

1 Justice Stevens delivered the dissent andargued that Rauscher controlled and accordingly an implied termshould be read into the treaty prohibiting abductions.8 6

376. 939 F.2d 1341 (9th Cir. 1991); see supra notes 219-39 and accompanying text(discussing Verdugo).

377. Alvarez-Machain, 946 F.2d at 1467; see Treaty, supra note 7, 31 U.S.T. 5059,T.I.A.S. No. 9656.

378. Alvarez-Machain, 946 F.2d at 1467; Verdugo-Urquidez, 939 F.2d at 1356.

379. Alvarez-Machain, 946 F.2d at 1466; Verdugo-Urquidez, 939 F.2d at 1359.

380. Alvarez-Machain, 946 F.2d at 1466. The District Court determined that theUnited States had abducted Dr. Alvarez-Machain through acts of the DEA and that Dr.Alvarez-Machain had derivative standing since the Mexican government had sent lettersof protest to the U.S. government. Caro-Quintero, 745 F. Supp. at 608-09.

381. Alvarez-Machain, 946 F.2d at 1467.

382. Id.

383. United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992).

384. Id. Justices White, Scalia, Kennedy, Souter, and Thomas joined the majorityopinion. Id.

385. Id. at 2191-97;. supra notes 106-62 (discussing the Ker-Frisbie doctrine and qual-ifications); see Treaty, supra note 7, 31 U.S.T. 5059, T.I.A.S. No. 9656.

386. Alvarez-Mahain, 112 S. Ct. at 2199. Justices Blackmun and O'Connor joinedin dissent. Id at 2197

1993] UNITED STATES v AL VAREZ-MA CHAIN 173

1. The Majority Opinion

In the majority opinion, Chief Justice Rehnquist addressedthe question of whether jurisdiction is proper when the UnitedStates abducts a criminal defendant from another country whenan extradition treaty is in place. 87 In analyzing whether the ab-duction of Dr. Alvarez-Machain violated the U.S.-Mexico Extradi-tion Treaty,"'8 the Court identified and relied upon the proposi-tions set forth in Ker,3 89 Rausche 90 and Frisbie.3 91 The Courtfound that in the absence of the operation of an extraditiontreaty, Ker would support jurisdiction over Dr. Alvarez-Machain.3 9 The Court also considered jurisdiction if renditionoccurred pursuant to the U.S.-Mexico Extradition Treaty.3 9 3

In examining the U.S.-Mexico Extradition Treaty, the Courtfocused on Article 9,394 which sets forth the procedure to be fol-lowed when a country requests extradition of a national of an-other country.39 5 Under Article 9, the asylum country mayeither extradite the accused or submit the case to its own author-ities for domestic prosecution.3 96 The Supreme Court inter-preted Article 9 as merely specifying one way in which a countrymay gain custody of an individual.3 97 According to the Court,extradition treaties set forth procedures for narrowly defined sit-uations that apply when countries invoke an extraditiontreaty.398 Relying on the Ker-Frisbie doctrine, the U.S. courts have

387. Id. at 2190.388. Id. at 2192.389. See supra notes 110-24 and accompanying text (discussing Ker).390. See supra notes 163-76 and accompanying text (discussing Rauscher).391. Alvare-Machain, 112 S. Ct. at 2191-92; supra notes 125-32 and accompanying

text (discussing Frisbie),392. Alvarez-Machain, 112 S. Ct. at 2192-93.393. Id.394. Id. at 2194; Treaty, supra note 7, art. 9, 31 U.S.T. at 5065, TIA.S. No. 9656 at

7.395. See supra notes 71-81 and accompanying text (discussing article 9 of U.S.-Mex-

ico Extradition Treaty).396. Treaty, supra note 7, art. 9, 31 U.S.T. at 5065, T.I.A.S. No. 9656 at 7; see supra

notes 71-81 (discussing article 9 of the U.S.-Mexico Extradition Treaty); see also Alvarez-Machain, 112 S. Ct. at 2195 (discussing interpretation of U.S.-Mexico ExtraditionTreaty).

397. Alvarez-Machain, 112 S. Ct. at 2194. The Court found that "[a]rticle 9 does notpurport to specify the only way in which one country may gain custody of a national ofthe other country for the purposes of prosecution." Id.

398. Id. at 2194. "Extradition treaties exist so as to impose mutual obligations tosurrender individuals in certain defined sets of circumstances, following established


recognized jurisdiction even in cases of abduction." Further-more, the Supreme Court stated that Mexico had known of thispractice since 1906." 0

The Court considered and rejected Dr. Alvarez-Machain'scontention that the U.S.-Mexico Extradition Treaty contained animplied term drawn from customary international law that pro-hibits abductions. ° 1 The Court rejected this assertion, 0 2 statingthat international law did not apply to nations in the practice ofextradition treaties. 4°3 Moreover, Dr. Alvarez-Machain relied onthe general principle of customary international law that onegovernment may not exercise its police power in the territory ofanother state. 40 4 The Court stated that this general propositionapplied to situations of invasion of a nation and that one couldnot seriously contend that an invasion of the United States byMexico would violate the terms of the extradition treaty.40 5 Inaddition, the Court found the Ninth Circuit opinion to be an

procedures." Id. The Court declined to find that a general prohibition of abductionsexisted as a result of the U.S.-Mexico Extradition Treaty. Id.

399. Id. at 2194. The Supreme Court asserts the treaty currently in effect betweenthe U.S. and Mexico does not curtail the effect of Ker. Id.; see supra notes 106-62 (dis-cussing the Ker-Frisbie doctrine).

400. Alvare-Machain, 112 S. CL at 2194. The Court noted that

[t]he history of negotiation and practice under the Treaty also fails to showthat abductions outside of the Treaty constitute a violation of the Treaty. Asthe Solicitor General notes, the Mexican government was made aware, as earlyas 1906, of the Ker doctrine, and the United States' position that it applied toforcible abductions made outside of the terms of the United States-Mexicoextradition treaty. Nonetheless, the current version of the Treaty, signed in1978, does not attempt to establish a rule that would in any way curtail theeffect of Ker.

Id.401. Id. at 2195; see supra notes 321-52 and accompanying text (setting forth argu-

ments of Dr. Alvarez-Machain).402. Alvarez-Machain, 112 S. CL at 2195-2196.403. Id. at 2195.404. Id. at 2196; see supra notes 321-52 and accompanying text (setting forth argu-

ment of Dr. Alvarez-Machain).405. Alvarez-Machain, 112 S. CL at 2196. The Court stated thatRespondent would have us find that the Treaty acts as a prohibition against aviolation of the general principle of international law that one governmentmay not 'exercise its police power' in the territory of another state. There aremany actions which could be taken by a nation that would violate this princi-ple, including waging war, but it cannot seriously be contended an invasion ofthe United States by Mexico would violate the terms of the extradition treatybetween the two nations.

UNITED STATES v. ALVARE-MACHAIN

illogical interpretation that international abductions violate thepurpose of the Treaty." 6

The Supreme Court concluded that while the U.S.-MexicoExtradition Treaty did not expressly condone methods outsidethe extradition process, it also did not bar them.4 °7 The generalprinciples cited by Dr. Alvarez-Machain failed to persuade theCourt to enforce an implied term.4°8 The Court did not find anylanguage in the U.S.-Mexico Extradition Treaty that prohibitedabductions.0 9 The Court reversed the judgment of the Court ofAppeals and remanded this case for further proceedings againstDr. Alvarez-Machain.4 °

2. The Dissenting Opinion

In his dissent, Justice John Paul Stevens contended that Dr.Machain's abduction violated the U.S.-Mexico ExtraditionTreaty. 411 He stated that although the U.S.-Mexico ExtraditionTreaty did not contain explicit terms banning abductions, thescope and object of the U.S.-Mexico Extradition Treaty imply anagreement to respect territorial integrity.412 Justice Stevens ac-knowledged that the interpretation of a treaty must be consistentwith the intent of the parties. 41 The United States and Mexicoformed an extradition treaty so that the two countries could co-operate to fight crime and foster mutual assistance.41 4 Accord-ing to the dissent, the intent of the parties should be construedto prohibit abductions.4 15 Furthermore, allowing abductionswould render some of the provisions of the U.S.-Mexico Extradi-

406. Id. at n.14.407. Id. at 2193-94. The Court observed that "[a]rticle 9 does not purport to spec-

ify the only way in which one country may gain custody of a national of the other coun-try for the purposes of prosecution." Id. at 2194.

408. Id.409. Id. at 2195. "We conclude, however, that respondent's abduction was not in

violation of the Extradition Treaty between the United States and Mexico, and there-fore the rule of Ker v. Illinois is fully applicable to this case. The fact of respondent'sforcible abduction does not therefore prohibit his trial in a court in the United Statesfor violations of the criminal laws of the United States." Id. at 2197.

410. Id. at 2197.411. Id. at 2197. Justices Blackmun and O'Connor joined Justice Stevens in his

dissent. Id.412. Id. at 2199.413. Id. at 2199.414. Treaty, supra note 7, at pmbl., 31 U.S.T. at 5061, T.I.A.S. No. 9656 at 3; Alva-

rez-Machain, 112 S. Ct. at 2198.415. Alvarez-Machain, 112 S. Ct. at 2198-2200.

1993]


tion Treaty meaningless.4"6

The dissent cited Rauscher to support its position that theWebster-Ashburton Treaty contained an implied term banningabductions.417 The dissent noted that the Webster-AshburtonTreaty418 between the United States and Great Britain was not ascomprehensive as the U.S.-Mexico Extradition Treaty. 41 9 TheWebster-Ashburton Treaty did not place any limit on jurisdictiononce the requesting state gained custody of the individual.42 °

Nevertheless, the Court in Rauscher, relying on the impliedmeaning of the Webster-Ashburton Treaty, would not allow anindividual to stand trial for anything other than the extraditedoffense.42' The dissent stated that Rauscher was correctly de-cided based on less clear legal standards than a violation of terri-torial integrity.422 Therefore, a violation of territorial integrity,as was the case here, necessitated a comparable result.425

Furthermore, the dissent identified the majority's failure todifferentiate between the conduct of private citizens and con-duct authorized by the government as a critical flaw.424 Conduct

416. Id. at 2198. The dissent addressed the U.S. government's claim by stating[p]etitioner's claim that the Treaty is not exclusive, but permits forcible gov-ernmental kidnaping, would transform these, and other, provisions into littlemore than verbiage. For example, provisions requiring 'sufficient' evidence togrant extradition (Art. 3), withholding extradition for political or military of-fenses (Art. 5), withholding extradition when the person sought has alreadybeen tried (Art. 6), withholding extradition when the statute of limitations forthe crime has lapsed (Art. 7), and granting the requested State discretion torefuse to extradite an individual who would face the death penalty in the re-questing country (Art. 8), would serve little purpose if the requesting countrycould simply kidnap the person.

Id.; Treaty, supra note 7, at art. 2, art. 3, art. 5, art. 6, art. 7, art. 8, 31 U.S.T. at 5062-65,T.I.A.S. No. 9656 at 4-7.

417. Alvarez-Machain, 112 S. Ct at 2200.418. Webster-Ashburton Treaty, supra note 167, art. 10, 8 Stat 572 at 576, T.S. No.

119; see supra notes 167-68 and accompanying text (discussing Webster-AshburtonTreaty).

419. See Treaty, supra note 7, 31 U.S.T. 5059, T.I.A.S. No. 9656; see Webster-Ash-burton Treaty, supra note 167, art. 10, 8 Stat at 576, T.S. No. 119; Alvarz-Machain, 112S. Ct. at 2200.

420. Alvarez-Machain, 112 S. Ct. at 2200.421. Rauscher, 119 U.S. at 432. Mr. Rauscher was extradited for the offense of

murder, but he was charged with the offense of inflicting. cruel and unusual punish-ment. Id. at 409. The Rauscher court held that he could not be tried for any offenseother than murder. Id. at 432.

422. Id. at 2202-03.423. Id. at 2202-03.424. Id. at 2203.

UNITED STATES v. ALVAREZ-MACHAIN

authorized by government is a violation of international law, andin the dissent's view, a violation of an extradition treaty.4 25 Com-paring Ker to the case at bar, the dissent noted that the kidnap-ping of Mr. Ker occurred within Peru without any pretence ofauthority under the treaty or by the U.S. government.426 UnlikeKer, the United States participated in the abduction of Dr.Alvarez-Machain. 427 The dissent therefore concluded that themajority's misplaced reliance on Ker contributed to theerroneous decision.428

F. The District Court's Decision on Remand

On remand the District Court for the Central District of Cal-ifornia dismissed Dr. Alvarez-Machain's case, acquitting him ofall charges on December 14, 1992.429 At the close of the prose-cution's case the court announced it would entertain the possi-bility of a dismissal for lack of evidence.45 ° Judge Rafeedie foundthat the government's evidence amounted to wild speculationand subsequently dismissed the charges before the case reacheda jury.

43 1

The court based the acquittal on a lack of direct evi-dence.45 2 Prosecutors failed to present sufficient evidence thatAgent Camarena actually received any of the drugs that were al-legedly administered by Dr. Alvarez-Machain.4 3 The body ofAgent-Camarena contained no trace of drugs4 3 4 and showed nopuncture marks.43 5 One government witness testified to having

425. Id.426. Id. at 2204.427. Id. at 2197. The case "does not involve an ordinary abduction by a private

kidnapper, or bounty hunter, as in Ker v. Illinois...." Id.428. Id.429. Man Is Convicted In Drug Agent's Torture Death, N.Y. TIMES, Dec. 22, 1992, at

A18. Dr. Machain's co-defendant, Ruben Zuno Arce, was not acquitted. Id. Mr. Arce

was convicted of all charges stemming from his association with the drug traffickers.Mr. Zuno acted as an intermediary between Guadalajara traffickers and corrupt Mexi-

can officials with high positions in law enforcement and military. Id.430. Jim Newton, Prosecution Rests in Camarena Case, L.A. TIMEs, Dec. 11, 1992, at

B1.431. David Clark Scott, Mexico Hails Acquittal in U.S. Murder Case, CHtusrTI Sci.

MONrrOR, Dec. 16, 1992, at 4.432. Id.433. Id.434. Id.435. Mexico Doctor Acquitted in DEA Agent's Murder, Hous. CHRON., Dec. 15, 1992, at

Al [hereinafter Doctor Acquitted].

19931


seen Dr. Alvarez-Machain rinsing syringes at the ranch whereAgent Camarena's torture took place.436 Another witness al-leged he saw Dr. Alvarez-Machain associate with the drug traf-fickers.437 The government's only physical evidence linking Dr.Alvarez-Machain to the crime, however, were fingerprints foundat the ranch.4 38 Though witnesses testified to Dr. Alvarez-Machain's role in Agent Camarena's torture and implicated vari-ous Mexican political officials,4 39 Judge Rafeedie found theprosecution's case lacked sufficient evidence to find Dr. Alvarez-Machain guilty of kidnapping, murder and torture.44 ° TheJudge accordingly dismissed the charges and allowed Dr. Alva-rez-Machain to return to Mexico.44'

III. EFFECTS OF UNITED STATES v. ALVAREZ-MACHAIN

In United States v. Alvarez-Machain, the Supreme Court con-doned the abduction of a non-U.S. national. 442 The Court ren-dered its decision by relying on well established cases and princi-ples in the area of extraterritorial apprehension.443 Neverthe-less, the authorities cited are not directly comparable to thesituation in Alvarez-Machain.444 As a result, a persisting question

436. Id.437. Id.438. Scott, supra note 431, at 4. Fingerprints were found on a dry cleaning bag in

a closet, but there was no indication when the prints were made. Doctor Acquitted, supranote 435, at Al.

439. See supra note 81 and accompanying text (referring to allegations of corrup-tion in Mexico's Attorney General's Office and some executive leaders). Rene LopezRomero, a former bodyguard of Raphael Caro-Quintero, testified he heard Mr. Caro-Quintero vehemently threaten Agent Camarena. Jim Newton, Camarena's Abduction andTorture Described, L.A. TIMES, Dec. 10, 1992, at B1. Another witness, Jorge Godoy, also aformer bodyguard to Mr. Caro-Quintero, testified implicating political officials. JimNewton and Marjorie Miller, Testimony Links Mexican Officials to Agent's Death, L.A.TIMES, Dec. 9, 1992, at Al.

440. See Doctor Acquitted, supra note 435, at Al.441. Id. Judge Rafeedie told the prosecutors that "there has to be stronger evi-

dence than you have offered to find that a man is guilty of kidnapping, murder andtorture." Id. Dr. Alvarez-Machan subsequently filed a U.S. $20 million dollar adminis-trative claim against the Justice Department for violation of his civil rights. Jerry Seper,Justice Sued for $20 Million by Doctor in Camarena Case, WASH. TIMES, July 10, 1993, at AS.

442. Alvarez-Machain, 112 S. Ct 2188.443. See supra notes 383-410 and accompanying text (discussing Supreme Court's

opinion in Alvarez-Machain); see supra notes 106-32 and accompanying text (discussingKer, Frisbie); see supra notes 163-76 (discussing Rauscher).

444. Alvarez-Machain, 112 S. Ct. at 2191. The Supreme Court itself stated "we havenever before addressed the precise issue raised in the present case.. . ." Id.


is whether the Court allowed the circumstances of the crime todictate the outcome. Alvarez-Machain gives rise to the need forspecific policy regarding abductions.

A. Applicability of U.S. Case Law in the Supreme Court's Decision inAlvarez-Machain

The distinction between the Ker-Frisbie line of cases andUnited States v. Rauscher's progeny is central in analyzing Alvarez-Machain.44 Ker-Frisbie applies when there is no invocation of atreaty,"46 while Rauscher applies in situations where a treaty con-trols and a treaty violation exists.447 The Supreme Court in Alva-rez-Machain correctly acknowledged the distinction between thecase law principles and correctly identified them as establishedprinciples."' The controversy does not lie in what these casesstand for, but rather in the Supreme Court's interpretation andapplication of these case law principles to the circumstances inAlvarez-Machain.

Ker v. Illinois449 applies in situations where an extraditiontreaty is not invoked.4"' Ker allowed jurisdiction over a defend-ant before the court regardless of the method used to appre-hend the defendant. Ker, however, contains several elementsthat distinguish it from Alvarez-Machain. First, although theUnited States followed an existing extradition treaty, the extradi-tion procedure could not be implemented.4 5' Second, theUnited States sought Mr. Ker, a U.S. citizen, for a crime commit-ted within the United States, which gave the United States terri-torial jurisdiction.452 Third, Ker involved a private abduction by

445. 112 S. Ct. 2188 (1992).

446. See supra notes 106-62 and accompanying text (discussing Ker-Frisbie doc-trine).

447. See supra notes 163-76 and accompanying text (discussing Rauscher).

448. Alvarez-Machain, 112 S. Ct. at 2191. The Court considered "proceedings inclaimed violation of an extradition treaty, [in United States v. Rauscher] and proceed-ings against a defendant brought before a court by means of forcible abduction [in Kerv. Illinois]." Id. at 2191.

449. 119 U.S. 436 (1886).450. Id. at 436; see supra notes 110-24 and accompanying text (discussing Ker).451. See supra notes 113-17 and accompanying text (explaining lack of success of

extradition procedure was due to civil unrest in Peru, which resulted in absence offormal, functioning government to enforce treaty).

452. See supra notes 110-24 and accompanying text (discussing Ker).

1993]

180 FORDHAM1NTERNATIONALLAWJOURNAL [Vol. 17:126

the United States of a U.S. citizen.45 Finally, Peru had no objec-tion to the action and thus consented to the rendition.454 Be-cause no conflict occurred, no issue arose as to the violation ofthe extradition treaty.4 5 The Ker case presented an unusual situ-ation. The Supreme Court decided this case in 1886 when thePeruvian government was unstable, international law principleswere undeveloped and extradition treaties were not utilized asoften as they are today.456

The case of Alvarez-Machain addressed a treaty violation. Al-varez-Machain involved a crime committed in Mexico by Mexicancitizens.457 The United States therefore had no territorial juris-diction nor sovereign power over its own citizen.458 In addition,although a fully enforceable extradition treaty was in place andoperable, it was not invoked.459 A crucial matter in the Alvarez-Machain case was that paid agents of the U.S. government, andnot private persons, performed the abduction. As is evident, var-ious differences exist between Ker and Alvarez-Machain thatshould have precluded Ker's applicability.

The case of Frisbie v. Collins46 ° upheld Ker and allowed juris-diction regardless of how the government produced the defend-ant.461 Specifically, it condoned domestic interstate abductionsinvolving U.S. actions over U.S. citizens.462 Because the actioninvolved states within U.S. territory, violations of the principles

453. See supra note 113 (explaining that Pinkerton agent was forerunner to U.S.Marshal Service).

454. See supra notes 110-24 and accompanying text (discussing Ker),455. Id.456. Alvarez-Machain, 112 S. Ct. at 2198. The dissent noted that "the extradition

treaty with Mexico is a comprehensive document containing 23 articles and an appen-dix listing the extraditable offenses covered by the agreement." Id.

457. Caro-Quintero, 745 F. Supp. at 603458. OPPENHEIM, supra note 29, at 331. Oppenheim notes thatMany States claim jurisdiction with regard to certain acts committed by a for-eigner in foreign countries .... These States cannot of course, exercise thisjurisdiction as long as the foreigner concerned remains outside their territory.But if, after the commission of such -act, he enters their territory and comesthereby under their territorial supremacy, they have an opportunity of in-flicting punishment.

Id.459. See Treaty, supra note 7, 31 U.S.T. 5059, T.I.A.S. No. 9656. See generally United

States v. Alvarez-Machain, 112 S. Ct. 2188 (1992) (utilizing extraterritorial abduction asalternative to extradition).

460. 342 U.S. 519 (1952).461. Id. at 519.462. Id.

UNITED STATES v. AL VAREZ-MA CHAIN

of sovereignty and territoriality did not ensue.463 Therefore,there is no international basis for the Frisbie decision and theprinciples of abduction found in Frisbie should not apply to Alva-rez-Machain.

The Supreme Court mistakenly relied upon United States v.Rauschey" to support its decision in Alvarez-Machain.465 UnlikeKer, Rauscher involved a legal extradition under a valid extradi-tion treaty and did not address whether extraterritorial abduc-tions violated extradition principles.466 The issue before theCourt in Rauscher was whether the treaty contained an impliedterm forbidding prosecution of a defendant for a crime otherthan the extradited crime.467 Alvarez-Machain addresses the doc-trine of specialty, because murder is one of the enumerated of-fenses encompassed in the U.S.-Mexico Extradition Treaty.468

The Supreme Court, however, cited this case for the reasoningregarding the interpretation of a treaty when a treaty is in-voked.469 If the Supreme Court had found the U.S.-Mexico Ex-tradition Treaty governed the Alvarez-Machain case, Rauscherwould have been crucial in finding an implied term in the U.S.-Mexico Extradition Treaty that prohibited abductions.470

In addition to erroneously applying U.S. case law, theSupreme Court chose to overlook the U.S. government's involve-ment in the abduction of Dr. Alvarez-Machain.471 According tocustomary international law, one government s presence in an-other nation violates the territoriality and sovereignty of that na-tion.472 In addition, government participation in an unauthor-ized apprehension points to a violation of an extradition treaty.This indicates the importance of who effectuated the apprehen-sion. Yet, the Supreme Court, in determining whether the U.S.-

463. See supra note 34 (discussing principle of sovereignty and territoriality).464. 119 U.S. 407 (1886).465. Alvarez-Machain, 112 S. Ct. at 2195; see supra notes 163-76 and accompanying

text (discussing Rauscher).466. See supra notes 163-76 and accompanying text (discussing Rauscher).467. Rauscher, 119 U.S. at 407.468. See Treaty, supra note 7, art. 17, 31 U.S.T. at 5071-72, T.I.A.S. No. 9656 at 13.469. Alvarez-Machain, 112 S. Ct. at 2195. The Court stated "we have previously con-

sidered proceedings in claimed violation of an extradition treaty... in Rauscher." Id. at2191.

470. Alvarez-Machain, 112 S. CL at 2145.471. See supra notes 387-410 and accompanying text (discussing majority opinion

in Alvarez-Machain).472. See supra note 3 (discussing customary international law).

1993]

182 FORDHAM INTERNATIONAL LAWJOURNVAL

Mexico Extradition Treaty controlled, did not consider the un-disputed fact that the U.S. government paid agents to abduct Dr.Alvarez-Machain.47 This factor, important in treaty interpreta-tion and customary international law, was ignored by theSupreme Court.

B. Implications of Alvarez-Machain

The case of Alvarez-Machain is not an isolated case in thearea of extraterritorial apprehension. The Court's rationale anddecision in this case has created controversy in the internationallegal community, the United States, and in the area of diplo-matic relations abroad. It is important to consider these ramifi-cations in the context of U.S. international and domestic rela-tions.

1. U.S.-Mexican Relations Compared WithU.S.-Canadian Relations

The operation of the U.S.-Mexico Extradition Treaty in thiscase illustrates the duplicity of the United States in abiding byextradition treaties. The United States holds a separate bilateralextradition treaty with Mexico and with Canada.4 74 Mexico andCanada are similarly situated in that each borders the UnitedStates, each holds an extradition treaty with the United States,and each country holds political influence.475 In spite of thesimilarities, the United States, however, has not afforded Canadaand Mexico comparable treatment in the area of extraterritorialapprehension.

a. U.S.-Canadian Relations

Canada and the United States have traditionally subscribedto the principle that an abduction, when protested, must resultin repatriation.47 Cases that involved abduction and protesthave resulted in restoration of the status quo and repatriation of

473. Caro-Quintero, 745 F. Supp. 599, 603 (C.D. Cal. 1990).474. See Treaty, supra note 7, 31 U.S.T. 5059, T.I.A.S. No. 9656; U.S.-Canada

Treaty, supra note 184, 27 U.S.T. 983, T.I.A.S. No. 8237.475. See supra notes 240-441 and accompanying text (discussing Alvarez-Machain);

see supra notes 183-203 and accompanying text (discussingJaffe).476. Brief of the Government of Canada, supra note 183, at 8, Alvarez-Machain

(No. 91-712); see supra note 9 (discussing repatriation as remedy).

[Vol. 17:126

1993] UNITED STATES v. AL VAREZ-MACHAIN

the abducted individual.477 Such was the case inJaffe v. Smith.47

Jaffe and Alvarez-Machain encompass similar jurisdictional is-sues.479 In Jaffe, the United States obtained personal jurisdictionover the defendant through abduction, without utilizing theU.S.-Canada Extradition Treaty.48 0 The United States admittedthat the kidnapping of Mr. Jaffe, by bounty hunters, offendedCanada's territoriality and sovereignty.481 In response to the Ca-nadian government's protest of the abduction, the United Statesrepatriated Mr. Jaffe and acknowledged the need to alleviate ten-sion in order to foster favorable relations.48 2

Following this incident the countries effected an amend-ment to the U.S.-Canada Extradition treaty.4 3 The UnitedStates and Canada broadened the definition of extraditable of-fense to include crimes punishable by more than one year im-prisonment.48 4 In addition, bounty hunters seizing personswithin Canada would be extradited from the United States andsubject to kidnapping charges.

The U.S. government dealt with Mexico and the issues sur-rounding Alvarez-Machain in an opposing manner. The United

477. Brief of Government of Canada, supra note 183, at 11, Alvarez-Machain (No.91-712).

478. 825 F.2d 304, 307 (1lth Cir. 1987); supra notes 183-203 (discussing Jaffe v.Smith).

479. Jaffe, 825 F.2d at 307-08; Alvarez-Machain, 112 S. Ct. at 2193-97 (1992).480. U.S.-Canada Extradition Treaty, supra note 184, 27 U.S.T. 983, T.I.A.S. No.

8237.481. See Memorandum from Secretary of State George P. Schultz to State of Flor-

ida Probation and Parole Commission (July 22, 1983); see supra note 34 (discussingprinciples of sovereignty and territoriality).

482. See Memorandum from Secretary of State George P. Schultz to State of Flor-ida Probation and Parole Commission (July 22, 1983).

483. David K. Shipler, U.S. and Canada Close Extradition Gap, N.Y. TIMES, Jan. 12,1988, at A3. On January 11, 1988, Secretary of State George P. Schultz and CanadianSecretary of State for External Affairs, Joe Clark, signed a protocol, amending the U.S.-Canada Extradition Treaty. Id.; see supra notes 183-203 and accompanying text (discuss-ing Jaffe).

484. Gabriel M. Wilner, Transborder Abductions by American Bounty Hunters-TheJaffeCase and a New Understanding Between the United States and Canada, 20 GA. J. INT'L &CoMp. L. 489 (1990). In addition, following the Jaffe incident, the United States andCanada amended their extradition treaty. Id. To discourage suspects from seeking ref-uge in either the United States or Canada, the protocol broadened the meaning ofextraditable offense to include a crime in both countries punishable by more than oneyear of imprisonment. Id.

485. Wilner, supra note 484, at 489. In addition, bounty hunters seizing personswithin Canada, would be extradited to face charges kidnapping charges. Id.

184 FORDHAMIN7ERNATIONAL LAWJOURNAL [Vol. 17:126

States paid agents to abduct Dr. Alvarez-Machain from Mexicowithout invoking the U.S.-Mexico Extradition Treaty.4 86 Mexicoprotested the abduction by sending a series of diplomatic notesdemanding Dr. Alvarez-Machain's return.487 The United States,however, did not concede any violation of international law anddid not respond by repatriating Dr. Alvarez-Machain.4 8s Insteadthe United States claimed justification for its actions under theKer-Frisbie doctrine.489

After the Supreme Court's decision in Alvarez-Machain,Mexico further expressed its outrage. Not only did Mexicothreaten to desist in efforts with the United States to combatdrug trafficking, but Mexico also demanded a renegotiation ofits extradition treaty with the United States.49 ° The UnitedStates responded by assuring Mexico that abductions would beused only in extreme circumstances and U.S. officials expressedthat the United States held the preservation of Mexico's sover-eignty and territoriality in highest regard.49'

The United States accommodates countries according tothe diplomatic power of countries and U.S. necessity to maintainfavorable international relations with certain countries.492 The

486. See supra notes 368-71 and accompanying text (discussing United States in-volvement in abducting Dr. Alvarez-Machain).

487. 'See supra notes 284-88 and accompanying text (detailing notes sent by Mexicoprotesting abduction).

488. See supra notes 289-320 and accompanying -text (setting forth argument ofUnited States).

489. Id.490. Neil A. Lewis, US. Tries to Quiet Storm Abroad Over High Court's Right to Kidnap,

N.Y. TIMES, June 17, 1992, at A8. The Mexican government demanded "immediaterenegotiation of the extradition treaty to bar the sort of kidnappings that have now wonsanction by the Supreme Court." Id. Sharon LaFraniere, Baker Offers Reassurances AfterCourt Kidnap Ruling, WASH. PosT, June 17, 1992, at A2. "Mexico announced that it wasessentially severing all cooperation between the two countries on drug investigations."Id. Marjorie Miller and Ronald J. Ostrow, Mexico Threatens to Halt Anti-Drug CooperationOver Abduction of Suspect, L.A. TIMES, Apr. 19, 1990, at A6.

491. Sharon LaFraniere, Baker Offers Reassurances After Court Kidnap Ruling, WASH.PosT, June 17, 1992, at A2. Attorney General William P. Barr said the United States"would use its 'snatch' authority 'only in the most compelling circumstances.'" Id. Sec-retary of State James A. Baker, III offered reassurances that "the United States respectsthe sovereignty of foreign governments, despite [the] Supreme Court ruling." Id.

492. Abramovsky, Catch and Snatch Policy, supra note 12, at 205. ProfessorAbramovsky contends that "the ultimate lesson of the Jaffe case is that there are situa-tions in which the executive branch does not sanction extraterritorial abductions,namely when the government of the asylum country is capable of applying substantialdiplomatic pressure on the administration." Id.


United States in Jaffe, declined to withstand Canada's protestsabandoning the opportunity to vindicate Mr. Jaffe's wrongs. 493

The United States in this act demonstrated that it consideredCanada to be an important diplomatic ally and desired to main-tain favorable relations with this country. In contrast, the situa-tion in Alvarez-Machain indicated that the United States did notvalue Mexico as a strong and needed diplomatic force. At Mex-ico's protests, the U.S. government did not intervene in the judi-cial proceedings to alleviate tension, between the countries, butrather allowed the U.S. courts to make their determinations.

Although reasons may exist to justify the actions of theUnited States, the fact remains that the United States deals withcountries in contrasting and at times hypocritical ways. Specificfactors involved in the Alvarez-Machain case are that the UnitedStates and Mexico have engaged in a joint effort to combat drugtrafficking and annihilate drug rings.49 4 While Alvarez-Machaininvolved drug enforcement and the kidnap and murder of a U.S.DEA agent, Jaffe involved land sale violations.495 The murder ofa U.S. law enforcement official combatting a dangerous drugtrade was more than likely interpreted as an affront to theUnited States and played a large factor in U.S. discretion to ab-duct Dr. Alvarez-Machain.

Whatever the reason for the disparity of treatment, theUnited States cannot escape the unfavorable response to Alvarez-Machain. Such disparity in conduct between the Alvarez-Machaincase and the Jaffe case, places the United States in a precariousposition. The United States presents itself as ignoring interna-tional policy and selecting principles of international law accord-ing to the situation and the best interests of the United States.This inconsistent application can only be expected to causerepercussions with other nations where the United States has re-lations and seeks cooperation.

493. Abramovsky, Catch and Snatch Policy, supra note 12, at 205. ProfessorAbramovsky maintains that "it is also clear that the administration did not deem the riskof not bringingJaffe to justice before a court in the United States to be worth jeopardiz-ing its foreign relations with Canada." Id.

494. Marjorie Miller & Ronald J. Ostrow, Mexico Threatens to Halt U.S. Anti-DrugCooperation, LA. Tim.s, Apr. 19, 1990, at A6.

495. United States v. Alvarez-Machain, 112 S. Ct. 2188, 2190; Jaffe v. Smith, 825F.2d 304, 305-06 (1lth Cir. 1987).

1993]


b. U.S.-Mexico Relations

Mexico viewed the December 14, 1993 release of Dr. Alva-rez-Machain as a victory.49 6 Undeniably, the events surroundingthe apprehension and prosecution of Dr. Alvarez-Machaincaused tension in U.S.-Mexico relations.49 7 The relations be-tween the United States and Mexico deserve closer examinationin dealing with this issue.

Mexico contended that the United States disrespectfully vio-lated Mexico's territoriality and sovereignty. 49 In protesting theabduction, Mexico expected the United States to afford a rem-edy consistent with international law principles and respect pre-viously given to other countries. Mexico, however, did not suc-ceed in the repatriation of Dr. Alvarez-Machain and refused togo unnoticed.

Mexico made a vehement protest against the United Statesin spite of the benefits Mexico receives from the United States.Mexico gained advantages from the United States in drug en-forcement, economic aid and currently in the North AmericanFree Trade Agreement ("NAFTA"). Mexico seemingly riskedjeopardizing its position with the United States by contesting Dr.Alvarez-Machain's jurisdiction and asserting international law vi-olations.

Mexico strives to forsake its status as a developing countryand become a strong national force.499 In its protest to the ab-

496. David Clark Scott, Mexico Hails Acquittal in U.S. Murder Case, CHRiSTLAN SCI.MONrrOR, Dec. 16, 1992, at 4.

497. See Henry Weinstein, More Suspects to be Sought in Camarena Case, L.A. TIMES,Aug. 10, 1990, at A3.

498. Brief for the United Mexican States as Amicus Curiae on writ of certiorari tothe United States Court of Appeals for the Ninth Circuit at 11, United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991), 112 S. Ct 2188 (1992) (No. 91-712). MexicoPresident Carlos Salinas de Gortari made a speech stating that "the fight against drugtrafficking cannot be used as a pretext for violating the law nor the territory of anothercountry." Ronald Ostrow, Mexican Leader Assails U.S. Drug War Conduct, L.A. TIMES, Apr.20, 1990, at A9. The Mexico President also stated that "international cooperation mustbe based on unrestricted respect for the sovereignty of each nation." Id.; see, also JuanM. Vasquez, U.S. Bitterness Lingers in Drug Agent's Killing, Mar. 17, 1985, L.A. TIMES, at 1(describing U.S. disregard for Mexico's sovereign rights).

499. Anthony DePalma, Reform in Mexico: Now You See It,. N.Y. TIMES, Sept. 12,1993, at E4. "What makes Mexico so interesting now is that for the first time, a devel-oped country like the United States is thinking of joining hands so firmly with a devel-oping country like Mexico, and Mexico is determined to show that it is worthy of its newstatus.... Many economic and social reforms have come out of Los Pinos... and atleast on the surface it appears that Mexico is truly re-inventing itself." Id.

UATTED STATES v. AL VAREZ-MA CHAIN

duction of Dr. Alvarez-Machain, Mexico took the opportunity toexpress to the United States, its position as an equal. With prin-ciples of international law in its favor and other countries notice-ably concerned with the outcome of this case and expressing anopinion consistent with Mexico, Mexico's protests served to es-tablish recognition for its country while addressing the concernsof other countries.

2. Effects on Future Enforcement of Extradition Treaties andthe United States' Move Towards a Specific Policy Regarding

Extraterritorial Apprehensions

Nations have reacted to the Supreme Court's decision in Al-varez-Machain in several ways. On January 12, 1993, the CostaRican Supreme Court invalidated the Costa Rica-U.S. Extradi-tion Treaty following a U.S. citizen's habeas corpus appeal. 500

Costa Rica currently has several drug traffickers incarceratedawaiting extradition to the United States.501 As a result of theCosta Rican Supreme Court's ruling, these individuals may notbe extradited.0 2

Other organizations and countries have also expressed a re-action to the Supreme Court's reluctance to adhere to extradi-tion law. Canada has expressed that an abduction from Cana-dian territory is a criminal act.50 The Swiss Justice Ministry ex-pressed disfavor with the ruling. 4 The Parliament of Uruguayinterprets the decision as a lack of understanding for interna-tional law and extradition treaties. 505 Brazil has expressed its in-tent to invalidate its extradition treaty with the United States.506

Some states, such as Mexico, have demanded the renegotiation

500. Maureen Walsh, Costa Rican Court Invalidates Extradition Treaty, 9 INT'L EN-FORCEMENT L. REP. 57 (1993).

501. Id.502. Id.503. Sharon LaFraniere, Baker Offers Reassurances After Court Kidnap Rule, WASH.

POST, June 17, 1992, at A2; Canada: Government Asks for U.S. Promise Not to Abduct Sus-

pects, Inter Press Serv., July 20, 1992, available in LEXIS, Nexis Library, INPRES File.504. Sharon LaFraniere, Baker Offers Reassurances After Court Kidnap Ruling, WASH.

POST, June 17, 1992, at A2. The Swiss Justice Ministry, Juerg Kistler stated "imaginewhere it would lead if every country would do that. You would have anarchy." Id.

505. Andrew L. Wilder, Recent Development, United States v. Alvarez-Machain, 32VA. J. INT'L L. 979, 993 (1992).

506. Maureen Walsh, US. Customs Agents' "Sting" of Cypriot in the Bahamas and CostaRican Supreme Court's Invalidation of U.S. Extradition Treaty Put Pressure on U.S. ExtraditionPolicy, 9 INT'L ENFORCEMENT L. REP. 58, 60 (1993).

1993]


of their extradition treaty.50

7

International organizations such as the Organization ofAmerican States ("OAS"), have expressed disfavor with theUnited States.508 Argentina, Brazil, Paraguay, Uruguay, Chileand Bolivia requested the American Juridical Committee, a partof the OAS, to issue an advisory opinion regarding the outcomeof Alvarez-Machain.5° The Juridical Committee unanimouslyheld that the United States violated Mexico's sovereignty and ac-ted independently of established international principles. 10

In response to the controversy prompted by the Alvarez-Machain decision, the U.S. Congress introduced legislation toaddress this issue. On July 7, 1992, the House of Representativesconsidered the International Kidnaping and Extradition TreatyAct (the "Act").5" This legislation specifically bars prosecutionof a person who is forcibly abducted from a non-U.S. nation byan agent of the United States where an extradition treaty is inplace. 512 At the time of introduction of this legislation, the Actsought to restore respect for a nation's sovereignty and to ex-press the view, that extradition treaties serve to afford a nation aprocedure for apprehension. 513 Recently, Senator Patrick Moy-nihan introduced a bill to amend the Foreign Assistance Act of1961. 5'4 The amendment prohibits direct arrest and abduction

507. Id. at 60.508. Id.509. Wilder, supra note 505, at 993.510. Wilder, supra note 505, at 993. The Committee issued an opinion and deter-

mined that "the kidnapping in question is a grave violation of international rights and atransgression of the sovereignty of Mexican territory." Id.

511. 138 Cong. Rec. H6019, 102d Cong., 2d Sess. (1992).512. Id. The International Kidnapping and Extradition Treaty Enforcement Act

of 1992 provides in pertinent part:(a) In General. - A person who is forcibly abducted from a foreign placewhich has in effect an extradition treaty with the United States-(1) by the agents of a governmental authority in the United States for thepurposes of a criminal prosecution; and(2) in violation of the norms of international law; shall not be subject to pros-ecution by any governmental authority in the United States.(b) Foreign Governmental Consent. - An abduction is not, for the purposesof this section, a violation of the norms of international law if the governmentof the foreign place consents to that abduction, but such consent may not beimplied by the absence of a prohibition on such abductions in a treaty regard-ing extradition.

Id,513. Id.514. The Amendment to Section 481(c) of the Foreign Assistance Act provides:

[Vol. 17:126


by U.S. agents in any non-U.S. nation. Domestic concern in thearea of extraterritorial apprehensions as well as concern ex-pressed by non-U.S. nations indicates that the United States can-not continue operating without specific policy to address this sit-uation.

CONCLUSION

United States v. Alvarez-Machain reveals the difficulties be-hind the lack of specific legislation directed towards extraterrito-rial apprehension. Despite the existence -of extradition treaties,the United States in recent past has used extralegal means ofapprehensions with increased frequency. With the decision ofAlvarez-Machain, the United States' outdated interpretation of in-ternational law principles received renewed attention. In addi-tion, to allow the U.S. Supreme Court to interpret existing U.S.policy and international law principles is unsatisfactory when re-lations between the United States and other nations are crucial.The need to update and clarify the way the United States dealswith other countries has become crucial. Nations await theUnited States to redefine its extradition policy and alleviate thetension created by the events surrounding this decision.

Aimee Lee*

(1) Prohibition on Direct Arrest and Abduction.(A) Notwithstanding any other provision of law, no officer, agent or em-

ployee of the United States may directly effect an arrest in any foreign countryas part of any foreign police action; and

(B) Notwithstanding any other provision of law, no officer, agent of em-ployee of the United States Government may, directly or indirectly, authorize,carry out or assist in the abduction of any person within the territory of anyforeign state exercising effective sovereignty over such territory without theexpress consent of such state.

S. 72, 103d Cong., 1st Sess. (1993), available in LEXIS, Nexis Library, LEGIS File.* J.D. Candidate, 1994, Fordham University.

1993]

Fordham International Law Journal - Semantic Scholar · A. General Principles of Extradition The...

Documents

Transcript of Fordham International Law Journal - Semantic Scholar · A. General Principles of Extradition The...